EXHIBIT 4.5(a)
CONFORMED COPY
DATED 13th DECEMBER, 2001
DENTSPLY INTERNATIONAL INC.
Euro 350,000,000 5.75 per cent. Notes due 2006
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AGENCY AGREEMENT
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ALLEN & OVERY
London
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CONTENTS
Clause Page
1. Definitions and Interpretation...............................1
2. Appointment of Agents........................................4
3. Authentification and Delivery of Notes.......................4
4. Payments.....................................................5
5. Notice of any withholding or deduction.......................7
6. Redemption for Taxation Reasons..............................7
7. Publication of Notices.......................................7
8. Cancellation of Notes and Coupons............................7
9. Issue of replacement Notes and Coupons.......................8
10. Copies of documents available for inspection................9
11. Meetings of Noteholders.....................................9
12. Commissions and Expenses....................................9
13. Indemnity..................................................10
14. Responsibility of the Paying Agents........................10
15. Conditions of Appointment..................................10
16. Communications between the Parties.........................12
17. Changes in Paying Agents...................................12
18. Merger and Consolidation...................................13
19. Notification of changes to Paying Agents...................13
20. Change of Specified Office.................................13
21. Communications.............................................14
22. Taxes and Stamp Duties.....................................14
23. Amendments.................................................14
24. Contracts (Rights of Third Parties) Act 1999...............15
25. Governing Law and Submission to Jurisdiction...............15
26. Counterparts...............................................16
Schedules
Schedule 1.Part I- Form of the Temporary Global Note...........17
Part II - Form of the Permanent Global Note...........28
Schedule 2.Part I - Form of Definitive Note and Coupon.........36
Part II - Terms and Conditions of the Notes...........40
Schedule 3.......................................................
Provisions for Meetings of Noteholders.........................52
Signatories............................. ............... 58
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DENTSPLY INTERNATIONAL INC.
Euro 350,000,000 5.75 per cent. Notes due 2006
AGENCY AGREEMENT
THIS AGREEMENT is dated 13th December, 2001 and made
BETWEEN:
(1) DENTSPLY INTERNATIONAL INC. (the "Issuer"); and
(2) CITIBANK, N.A. (the "Fiscal Agent", which expression shall include any
successor agent appointed under clause 17, and, together with any Paying
Agent or Paying Agents that may be appointed from time to time under
clause 17, the "Paying Agents" and each a "Paying Agent").
WHEREAS:
(A) The Issuer has agreed to issue Euro 350,000,000 5.75 per cent. Notes
due 2006 (the "Notes", which expression shall include, unless the
context otherwise requires, any further Notes issued pursuant to
Condition 13 and forming a single series with the Notes).
(B) The Notes will be issued in bearer form in the denominations of
Euro 1,000, (euro)10,000 and Euro 100,000 each with interest
coupons ("Coupons") attached on issue.
(C) The Notes will initially be represented by a temporary Global Note (the
"Temporary Global Note") in or substantially in the form set out in Part
I of Schedule 1 which will be exchanged in accordance with its terms for
a permanent Global Note (the "Permanent Global Note" and, together with
the Temporary Global Note, the "Global Notes") in or substantially in
the form set out in Part II of Schedule 1. The Permanent Global Note
will be exchanged for the Notes in definitive form only in the limited
circumstances set out therein.
(D) The definitive Notes and Coupons will be in or substantially in the
respective forms set out in Part I of Schedule 2. The Conditions of the
Notes will be in or substantially in the form set out in Part II of
Schedule 2.
IT IS AGREED:
1. Definitions and Interpretation
(1) In this Agreement and in the Conditions:
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Conditions" means the terms and conditions endorsed on the Notes and
being in or substantially in the form set out in Part II of Schedule 2;
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"Coupon" means an interest coupon appertaining to a Definitive Note, the
coupon being in the form or substantially in the form set out in Part I
of Schedule 2;
"Couponholders" means the several persons who are for the time being
holders of the Coupons;
"Definitive Note" means a Note in definitive form issued or, as the case
may require, to be issued by the Issuer in accordance with the
provisions of this Agreement and/or the Conditions in exchange for all
or part of a Global Note, the Definitive Note being in or substantially
in the form set out in Part I of Schedule 2 and having the Conditions
endorsed on it and having Coupons attached to it on issue;
"Euroclear Bank" means Euroclear Bank S.A./N.V. as operator of the
Euroclear System;
"Noteholders" means the several persons who are for the time being the
bearers of Notes save that, in respect of the Notes or any part of them
that are represented by a Global Note held on behalf of Euroclear Bank
and Clearstream, Luxembourg each person (other than Euroclear Bank or
Clearstream, Luxembourg) who is for the time being shown in the records
of Euroclear Bank or of Clearstream, Luxembourg as the holder of a
particular nominal amount of the Notes (in which regard any certificate
or other document issued by Euroclear Bank or Clearstream, Luxembourg as
to the nominal amount of the Notes standing to the account of any person
shall be conclusive and binding for all purposes save in the case of
manifest error) shall be deemed to be the holder of that nominal amount
of Notes (and the bearer of the relevant Global Note shall be deemed not
to be the holder) for all purposes other than with respect to the
payment of principal or interest on the Notes, for which purpose the
bearer of the relevant Global Note shall be treated by the Issuer and
any Paying Agent as the holder of the Notes in accordance with and
subject to the terms of the relevant Global Note and the expressions
"Noteholder", "holder of Notes" and related expressions shall be
construed accordingly;
"outstanding" means, in relation to the Notes, all the Notes issued
other than:
(a) those Notes which have been redeemed and cancelled pursuant to the
Conditions;
(b) those Notes in respect of which the date for redemption in accordance
with the Conditions has occurred and the redemption moneys
(including all interest payable thereon) have been duly paid to the
Fiscal Agent in the manner provided in this Agreement (and where
appropriate notice to that effect has been given to the Noteholders
in accordance with the Condition 11) and remain available for
payment against presentation of the Notes and/or Coupons;
(c) those Notes which have been purchased and cancelled in accordance with
Condition 6;
(d) those Notes in respect of which claims have become void or prescribed
under Condition 8;
(e)
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those mutilated or defaced Notes which have been surrendered and
cancelled and in respect of which replacements have been issued
pursuant to Condition 10;
(f) (for the purpose only of ascertaining the nominal amount of the Notes
outstanding and without prejudice to the status for any other
purpose of the relevant Notes) those Notes which are alleged to
have been lost, stolen or destroyed and in respect of which
replacements have been issued under Condition 10; and
(g) the Temporary Global Note to the extent that it has been exchanged for
the Permanent Global Note and the Permanent Global Note to the
extent that it has been exchanged for Definitive Notes in each case
under their respective provisions,
provided that for the purposes of:
(i) attending and voting at any meeting of the Noteholders or any of them;
and
(ii) determining how many and which Notes are for the time being outstanding
for the purposes of Condition 12 and paragraphs 2, 5 and 6 of
Schedule 4,
those Notes (if any) which are for the time being held by or for the
benefit of the Issuer or any Subsidiary of the Issuer shall (unless and
until ceasing to be so held) be deemed not to remain outstanding;
"Permanent Global Note" means a global note in the form or substantially
in the form set out in Part II of Schedule 1 comprising some or all of
the Notes; and
"Temporary Global Note" means a global note in the form or substantially
in the form set out in part 1 of Schedule 1 comprising some or all of
the Notes.
(2) (a) In this Agreement, unless the contrary intention appears, a
reference to:
(i) an "amendment" includes a supplement, restatement or novation and
"amended" is to be construed accordingly;
(ii) a "person" includes any individual, company, unincorporated association,
government, state agency, international organisation or other
entity;
(iii) a provision of a law is a reference to that provision as extended,
amended or re-enacted;
(iv) a clause or schedule is a reference to a clause of, or a schedule to,
this Agreement;
(v) a person includes its successors and assigns;
(vi) a document is a reference to that document as amended from time to time;
and
(vii) a time of day is a reference to London time;
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(b) The headings in this Agreement do not affect its interpretation;
(c) Terms defined in the Conditions and not otherwise defined in this
Agreement shall have the same meanings in this Agreement, except
where the context otherwise requires;
(d) All references in this Agreement to commissions, fees, costs, charges or
expenses shall include any value added tax or similar tax charged
or chargeable in respect thereof;
(e) All references in this Agreement to Notes shall, unless the context
otherwise requires, include any Global Note representing the Notes;
(f) All references in this Agreement to principal and/or interest or both in
respect of the Notes or to any moneys payable by the Issuer under
this Agreement shall be construed in accordance with Condition 5;
and
(g) All references in this Agreement to Euroclear Bank and/or Clearstream,
Luxembourg shall, whenever the context so permits, be deemed to
include a reference to any additional or alternative clearing
system approved by the Issuer and the Fiscal Agent.
2. Appointment of Agents
(1) The Fiscal Agent is appointed, and the Fiscal Agent agrees to act, as
agent of the Issuer, upon the terms and subject to the conditions set
out in this Agreement, for the following purposes:
(a) exchanging the Temporary Global Note for the Permanent Global Note or
Definitive Notes, as the case may be, in accordance with the terms
of the Temporary Global Note and making all notations on the
Temporary Global Note required by its terms;
(b) exchanging the Permanent Global Note for Definitive Notes in accordance
with the terms of the Permanent Global Note and making all
notations on the Permanent Global Note required by its terms;
(c) paying sums due on the Global Notes, Definitive Notes and Coupons;
(d) arranging on behalf of and at the expense of the Issuer for notices to
be communicated to the Noteholders in accordance with the
Conditions; and
(e) performing all other obligations and duties imposed upon it by the
Conditions and this Agreement.
(2) Each Paying Agent is appointed, and each Paying Agent agrees to act, as
paying agent of the Issuer, upon the terms and subject to the conditions
set out below, for the purposes of paying sums due on any Notes and
Coupons and performing all other obligations and duties imposed upon it
by the Conditions and this Agreement.
(3) The obligations of the Paying Agents under this Agreement are
several and not joint.
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3. Authentification and Delivery of Notes
(1) The Issuer undertakes that the Permanent Global Note (duly executed
on behalf of the Issuer) will be available to be exchanged for interests
in the Temporary Global Note in accordance with the terms of the
Temporary Global Note.
(2) In the event that the Permanent Global Note is required to be
exchanged in accordance with its terms, the Issuer undertakes that it
will deliver to, or to the order of, the Fiscal Agent, Definitive Notes
(with Coupons attached) in an aggregate principal amount of
Euro 350,000,000 or such lesser amount as is the principal amount of
Notes then represented by the Permanent Global Note. Each Definitive
Note and Coupon so delivered shall be duly executed on behalf of the
Issuer.
(3) The Issuer authorises and instructs the Fiscal Agent to
authenticate the Global Notes and any Definitive Notes.
(4) The Issuer authorises and instructs the Fiscal Agent to cause
interests in the Temporary Global Note to be exchanged for interests in
the the Permanent Global Note or for Definitive Notes, as the case may
be, and interests in the Permanent Global Note to be exchanged for
Definitive Notes in accordance with their respective terms. Following
the exchange of the last interest in a Global Note, the Fiscal Agent
shall cause that Global Note to be cancelled and delivered to the Issuer
or as it may direct.
(5) The Fiscal Agent shall cause all Notes delivered to and held by it
under this Agreement to be maintained in safe custody and shall ensure
that interests in the Temporary Global Note are only exchanged for
interests in the Permanent Global Note in accordance with the terms of
the Temporary Global Note and this Agreement and that the Definitive
Notes are issued only in accordance with the terms of the Permanent
Global Note and this Agreement.
(6) So long as any of the Notes is outstanding the Fiscal Agent shall,
within seven days of any request by the Issuer, certify to the Issuer
the number of Definitive Notes held by it under this Agreement. In no
event may (i) a Permanent Global Note issued in exchange for an interest
in a Temporary Global Note or (ii) Definitive Notes issued in exchange
for interests in a Temporary Global Note or a Permanent Global Note be
mailed to an address within or otherwise delivered with the United
States or its possessions (including, for this purpose, Puerto Rice,
Guam, American Samoa, Wake island, the U.S. Virgin Islands and the
Northern Mariana Islands).
4. Payments
(1) The Issuer will, before 10.00 a.m. (London time), on each date on which
any payment in respect of any Note becomes due under the Conditions,
transfer to an account specified by the Fiscal Agent such amount of euro
as shall be sufficient for the purposes of the payment.
(2) Any funds paid by or by arrangement with the Issuer to the Fiscal Agent
under subclause (1) shall be held in the relevant account referred to in
subclause (1) for payment to the Noteholders or Couponholders, as the
case may be, until any Notes or Coupons become void under Condition 8.
In that event the Fiscal Agent shall repay to the Issuer sums equivalent
to the amounts which would otherwise have been payable on the relevant
Notes or Coupons.
(3)
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The Issuer will ensure that no later than 10.00 a.m. (London time) on the
second Business Day (as defined below) immediately preceding the date on
which any payment is to be made to the Fiscal Agent under subclause (1),
the Fiscal Agent shall receive a payment confirmation from the paying
bank of the Issuer. For the purposes of this subclause, "Business Day"
means a day on which commercial banks and foreign exchange markets
settle payments and are open for general business in the United States
and London.
(4) The Fiscal Agent shall notify each of the other Paying Agents
immediately:
(a) if it has not by the relevant date set out in clause 4(1) received
unconditionally the full amount in euro required for the payment;
and
(b) if it receives unconditionally the full amount of any sum payable in
respect of the Notes or Coupons after such date.
The Fiscal Agent shall, at the expense of the Issuer, immediately on
receiving any amount as described in subparagraph (b), cause notice of
that receipt to be published under Condition 11.
(5) The Fiscal Agent shall ensure that payments of both principal and
interest in respect of the Temporary Global Note will only be made if
certification of non-U.S. beneficial ownership as required by U.S.
Treasury regulations (in the form set out in the Temporary Global Note)
has been received from Euroclear Bank and/or Clearstream, Luxembourg in
accordance with the terms of the Temporary Global Note.
(6) Unless it has received notice under subclause (4)(a), each Paying Agent
shall pay or cause to be paid all amounts due in respect of the Notes on
behalf of the Issuer in the manner provided in the Conditions. If any
payment provided for in subclause (1) is made late but otherwise in
accordance with the provisions of this Agreement, the relevant Paying
Agent shall nevertheless make payments in respect of the Notes as stated
above following receipt by it of such payment.
(7) If for any reason the Fiscal Agent considers in its sole discretion that
the amounts to be received by it under subclause (1) will be, or the
amounts (in same day cleared funds) actually received by it are,
insufficient to satisfy all claims in respect of all payments then
falling due in respect of the Notes, no Paying Agent shall be obliged to
pay any such claims until the Fiscal Agent has received the full amount
of all such payments.
(8) Without prejudice to subclauses (6) and (7), if the Fiscal Agent pays
any amounts to the holders of Notes or Coupons or to any other Paying
Agent at a time when it has not received payment in full in respect of
the Notes in accordance with subclause (1) (the excess of the amounts so
paid over the amounts so received being the "Shortfall"), the Issuer
will, in addition to paying amounts due under subclause (1), pay to the
Fiscal Agent on demand interest (at a rate which represents the Fiscal
Agent's cost of funding the Shortfall) on the Shortfall (or the
unreimbursed portion thereof) until the receipt in full by the Fiscal
Agent of the Shortfall.
(9)
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The Fiscal Agent shall on demand promptly reimburse each of the other Paying
Agents for payments in respect of Notes properly made by such Paying
Agent in accordance with this Agreement and the Conditions unless the
Fiscal Agent has notified the relevant Paying Agent, prior to its
opening of business on the due date of a payment in respect of the
Notes, that the Fiscal Agent does not expect to receive sufficient funds
to make payment of all amounts falling due in respect of the Notes.
(10) Whilst any Notes are represented by Global Notes, all payments due in
respect of the Notes shall be made to, or to the order of, the holder of
the Global Notes, subject to and in accordance with the provisions of
the Global Notes. On the occasion of each payment, the Paying Agent to
which any Global Note was presented for the purpose of making the
payment shall cause the appropriate Schedule to the Global Note to be
annotated so as to evidence the amounts and dates of the payments of
principal and/or interest as applicable.
(11) If the amount of principal and/or interest then due for payment is not
paid in full (otherwise than by reason of a deduction required by law to
be made or a certification required by the terms of a Note not being
received), the Paying Agent to which a Note or Coupon (as the case may
be) is presented for the purpose of making the payment shall make a
record of the shortfall on the relevant Note or Coupon and the record
shall, in the absence of manifest error, be prima facie evidence that
the payment in question has not to that extent been made.
5. Notice of any withholding or deduction
(1) If the Issuer is, in respect of any payment in respect of the Notes,
compelled to withhold or deduct any amount for or on account of Taxes as
contemplated under Condition 7, it shall give notice of that fact to the
Fiscal Agent as soon as it becomes aware of the requirement to make the
withholding or deduction and shall give to the Fiscal Agent such
information as it shall require to enable it to comply with the
requirement.
(2) If any Paying Agent is, in respect of any payment of principal or
interest in respect of the Notes, compelled to withhold or deduct any
amount for or on account of any taxes, duties, assessments or
governmental charges as contemplated under the Conditions, other than
arising under subclause (1) or by virtue of the relevant holder failing
to satisfy any certification or other requirement in respect of its
Notes, it shall give notice of that fact to the Issuer and the Fiscal
Agent as soon as it becomes aware of the compulsion to withhold or
deduct.
6. Redemption for Taxation Reasons
If the Issuer decides to redeem the Notes for the time being outstanding
under Condition 6(2), it shall give notice of the decision to the Fiscal
Agent at least 75 days before the proposed redemption date.
7. Publication of Notices
On behalf of and at the request and expense of the Issuer, the Fiscal
Agent shall cause to be published all notices required to be given by
the Issuer to the Noteholders in accordance with the Conditions.
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8. Cancellation of Notes and Coupons
(1) All Notes which are redeemed, Global Notes which are exchanged in full
and all Coupons which are paid shall be cancelled by the Paying Agent by
which they are redeemed, exchanged or paid. Where Notes are purchased by
or on behalf of the Issuer or any of its Subsidiaries the Issuer shall
procure that those Notes (together, in the case of Definitive Notes,
with all unmatured Coupons attached to them) are promptly cancelled and
delivered to the Fiscal Agent or its authorised agent. Each of the
Paying Agents shall give to the Fiscal Agent details of all payments
made by it and shall deliver all cancelled Notes and Coupons to the
Fiscal Agent or as the Fiscal Agent may specify.
(2) The Fiscal Agent shall deliver to the Issuer as soon as reasonably
practicable and in any event within three months after the date of each
repayment, payment, cancellation or replacement, as the case may be, a
certificate stating:
(a) the aggregate nominal amount of Notes which have been redeemed and the
aggregate amount paid in respect of them;
(b) the number of Notes cancelled together (in the case of Definitive Notes)
with details of all unmatured Coupons attached to them or delivered
with them;
(c) the aggregate amount paid in respect of interest on the Notes;
(d) the total number of each denomination by maturity date of Coupons
cancelled; and
(e) (in the case of Definitive Notes) the serial numbers of the Notes.
(3) The Fiscal Agent shall (unless otherwise instructed by the Issuer in
writing) destroy all cancelled Notes and Coupons and, immediately
following their destruction, send to the Issuer a certificate stating
the serial numbers of the Notes (in the case of Definitive Notes) and
the number by maturity date of Coupons destroyed.
(4) Without prejudice to the obligations of the Fiscal Agent under subclause
(2), the Fiscal Agent shall keep a full and complete record of all Notes
and Coupons (other than serial numbers of Coupons) and of their
redemption, purchase on behalf of the Issuer or any of its Subsidiaries
and cancellation, payment or replacement (as the case may be) and of all
replacement Notes or Coupons issued in substitution for mutilated,
defaced, destroyed, lost or stolen Notes or Coupons in accordance with
clause 9. The Fiscal Agent shall in respect of the Coupons of each
maturity retain until the expiry of five years from the Relevant Date in
respect of such Coupons either all paid or exchanged Coupons of that
maturity or a list of the serial numbers of Coupons of that maturity
still remaining unpaid or unexchanged. The Fiscal Agent shall at all
reasonable times make the record available to the Issuer and any persons
authorised by it for inspection and for the taking of copies of it or
extracts from it.
9. Issue of replacement Notes and Coupons
(1) The Issuer will cause a sufficient quantity of additional forms of Notes
and Coupons to be available, upon request, to the Fiscal Agent at its
specified office for the purpose of issuing replacement Notes and
Coupons as provided below.
(2)
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The Fiscal Agent will, subject to and in accordance with the Condition 10 and
this clause, cause to be delivered any replacement Notes and Coupons
which the Issuer may determine to issue in place of Notes and Coupons
which have been lost, stolen, mutilated, defaced or destroyed.
(3) In the case of a mutilated or defaced Note, the Fiscal Agent shall
ensure that (unless otherwise covered by such indemnity and surety bond
as the Issuer may require) any replacement Note will only have attached
to it Coupons corresponding to those attached to the mutilated or
defaced Note which is presented for replacement.
(4) The Fiscal Agent shall obtain verification in the case of an allegedly
lost, stolen or destroyed Note or Coupon in respect of which the serial
number is known, that the Note or Coupon has not previously been
redeemed, paid or exchanged, as the case may be. The Fiscal Agent shall
not issue any replacement Note or Coupon unless and until the claimant
shall have:
(a) paid such costs and expenses as may be incurred in connection with the
replacement;
(b) provided it with such evidence and indemnity including a surety bond as
the Issuer may require; and
(c) in the case of any mutilated or defaced Note or Coupon, surrendered it
to the Fiscal Agent.
(5) The Fiscal Agent shall cancel any mutilated or defaced Notes and Coupons
in respect of which replacement Notes and Coupons have been issued under
this clause and shall furnish the Issuer with a certificate stating the
serial numbers of the Notes and Coupons received by it and cancelled
pursuant to this clause and, unless otherwise instructed by the Issuer
in writing, shall destroy those Notes and Coupons and furnish the Issuer
with a destruction certificate containing the information specified in
clause 8(2).
(6) The Fiscal Agent shall, on issuing any replacement Note or Coupon,
immediately inform the Issuer and the other Paying Agents of the serial
number of the replacement Note or Coupon issued and (if known) of the
serial number of the Note or Coupon in place of which the replacement
Note or Coupon has been issued. Whenever replacement Coupons are issued
under this clause, the Fiscal Agent shall also notify the other Paying
Agents of the maturity dates of the lost, stolen, mutilated, defaced or
destroyed Coupons and of the replacement Coupons issued.
(7) Whenever any Note or Coupon for which a replacement Note or Coupon has
been issued and in respect of which the serial number is known is
presented to a Paying Agent for payment, the relevant Paying Agent shall
immediately send notice of that fact to the Issuer the Fiscal Agent.
10. Copies of documents available for inspection
Each Paying Agent shall hold copies of this Agreement available for
inspection by Noteholders and Couponholders. For these purposes, the
Issuer shall provide the Paying Agents with sufficient copies of this
Agreement.
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11. Meetings of Noteholders
(1) The provisions of Schedule 4 shall apply to meetings of the Noteholders
and shall have effect in the same manner as if set out in this Agreement.
(2) Without prejudice to subclause (1), each of the Paying Agents on the
request of any holder of Notes shall issue voting certificates and block
voting instructions in accordance with Schedule 4 and shall immediately
give notice to the Issuer in writing of any revocation or amendment of a
block voting instruction. Each of the Paying Agents will keep a full
and complete record of all voting certificates and block voting
instructions issued by it and will, not less than 24 hours before the
time appointed for holding a meeting or adjourned meeting, deposit at
such place as the Fiscal Agent shall approve, full particulars of all
voting certificates and block voting instructions issued by it in
respect of the meeting or adjourned meeting.
12. Commissions and Expenses
(1) The Issuer agrees to pay to the Fiscal Agent such fees and commissions
as the Issuer and the Fiscal Agent shall separately agree in writing in
respect of the services of the Paying Agents under this Agreement
together with any out of pocket expenses (including, but not limited to,
legal, printing, postage, fax, cable and advertising expenses) properly
incurred by the Paying Agents in connection with their services under
this Agreement.
(2) The Fiscal Agent will make payment of the fees and commissions due under
this Agreement to the other Paying Agents and will reimburse their
expenses promptly after the receipt of the relevant moneys from the
Issuer. The Issuer shall not be responsible for any payment or
reimbursement by the Fiscal Agent to the other Paying Agents.
13. Indemnity
(1) The Issuer shall indemnify each of the Paying Agents against any losses,
liabilities, costs, claims, actions, demands or expenses (together,
"Losses") (including, but not limited to, all costs, legal fees, charges
and expenses (together, "Expenses") paid or incurred in disputing or
defending any Losses) which it may incur or which may be made against it
as a result of or in connection with its appointment or the exercise of
its powers and duties under this Agreement except for any Losses and
Expenses resulting from its own default, negligence or bad faith or that
of its officers, directors or employees or the breach by it of the terms
of this Agreement.
(2) Each Paying Agent shall severally indemnify the Issuer against any
Losses (including, but not limited to, all Expenses paid or incurred in
disputing or defending any Losses) which the Issuer may incur or which
may be made against the Issuer as a result of the breach by the Paying
Agent of the terms of this Agreement or its default, negligence or bad
faith or that of its officers, directors or employees. Under no
circumstances will any Paying Agent be liable to the Issuer for loss of
business, goodwill, opportunity or profit even if the relevant Paying
Agent is advised of the possibility of such loss.
(3) The indemnities set out above shall survive any termination of this
Agreement.
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14. Responsibility of the Paying Agents
(1) No Paying Agent shall be responsible to anyone with respect to the
validity of this Agreement or the Notes or Coupons or for any act or
omission by it in connection with this Agreement or any Note or Coupon
except for its own default, negligence or bad faith, including that of
its officers, directors and employees.
(2) No Paying Agent shall have any duty or responsibility in the case of any
default by the Issuer in the performance of its obligations under the
Conditions or, in the case of receipt of a written demand from a
Noteholder or Couponholder, with respect to such default, provided
however that immediately on receiving notice given by a Noteholder in
accordance with Condition 9, the Fiscal Agent notifies the Issuer of the
fact and furnishes it with a copy of the notice.
(3) Whenever in the performance of its duties under this Agreement a Paying
Agent shall deem it desirable that any matter be established by the
Issuer prior to taking or suffering any action under this Agreement,
such matter may be deemed to be conclusively established by a
certificate signed by a duly authorised person on behalf of the Issuer
and delivered to the Paying Agent and the certificate shall be a full
authorisation to the Paying Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement in reliance upon
the certificate.
15. Conditions of Appointment
(1) Each Paying Agent shall be entitled to deal with money paid to it by the
Issuer for the purpose of this Agreement in the same manner as other
money paid to a banker by its customers except:
(a) that it shall not exercise against the Issuer or any holders of Notes or
Coupons any right of set-off, lien or similar claim in respect of
the money; and
(b) that it shall not be liable to account to the Issuer for any interest on
the money.
(2) No money held by any Paying Agent need be segregated except as required
by law.
(3) In acting under this Agreement and in connection with the Notes and the
Coupons, each Paying Agent shall act solely as an agent of the Issuer
and will not assume any obligations towards or relationship of agency or
trust for or with any of the owners or holders of the Notes or Coupons.
(4) Each Paying Agent undertakes to the Issuer to perform its duties, and
shall be obliged to perform the duties and only the duties, specifically
stated in this Agreement and the Conditions and no implied duties or
obligations shall be read into any of those documents against any Paying
Agent, other than the duty to act honestly and in good faith and to
exercise the diligence of a reasonably prudent agent in comparable
circumstances.
(5)
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The Fiscal Agent may consult with legal and other professional advisers and
the opinion of the advisers shall be full and complete protection in
respect of any action taken, omitted or suffered under this Agreement in
good faith and in accordance with the opinion of the advisers.
(6) Each Paying Agent shall be protected and shall incur no liability in
respect of any action taken, omitted or suffered in reliance on any
instruction from the Issuer or any document which it reasonably believes
to be genuine and to have been delivered by the proper party or on
written instructions from the Issuer.
(7) Any Paying Agent and its officers, directors and employees may become
the owner of, and/or acquire any interest in, any Notes or Coupons with
the same rights that it or he would have had if the Paying Agent
concerned were not appointed under this Agreement, and may engage or be
interested in any financial or other transaction with the Issuer and may
act on, or as depositary, trustee or agent for, any committee or body of
holders of Notes or Coupons or in connection with any other obligations
of the Issuer as freely as if the Paying Agent were not appointed under
this Agreement.
(8) The Issuer shall provide the Fiscal Agent with a certified copy of the
list of persons authorised to execute documents and take action on its
behalf in connection with this Agreement and shall notify the Fiscal
Agent immediately in writing if any of those persons ceases to be
authorised or if any additional person becomes authorised together, in
the case of an additional authorised person, with evidence satisfactory
to the Fiscal Agent that the person has been authorised.
(9) Except as ordered by a court of competent jurisdiction or as required by
law or applicable regulations, the Issuer and each of the Paying Agents
shall be entitled to treat the bearer of any Note or Coupon as the
absolute owner of it (whether or not it is overdue and notwithstanding
any notice of ownership or writing on it or notice of any previous loss
or theft of it).
(10) The Fiscal Agent shall not be under any obligation to take any action
under this Agreement which it expects will result in any expense or
liability accruing to it, the payment of which within a reasonable time
is not, in its reasonable opinion, assured to it.
16. Communications between the Parties
A copy of all communications relating to the subject matter of this
Agreement between the Issuer and any Paying Agent (other than the Fiscal
Agent) shall be sent to the Fiscal Agent.
17. Changes in Paying Agents
(1) The Issuer may terminate the appointment of any Paying Agent at any time
and/or appoint additional or other Paying Agents by giving to the Paying
Agent whose appointment is concerned and, where appropriate, the Fiscal
Agent at least 90 days' prior written notice to that effect, provided
that, so long as any of the Notes is outstanding:
(a) in the case of a Paying Agent, the notice shall not expire less than
45 days before any due date for the payment of interest; and
(b)
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notice shall be given under Condition 11 at least 30 days before the
removal or appointment of a Paying Agent.
(2) Notwithstanding the provisions of subclause (1), if at any time a Paying
Agent becomes incapable of acting, or is adjudged bankrupt or insolvent,
or files a voluntary petition in bankruptcy or makes an assignment for
the benefit of its creditors or consents to the appointment of an
administrator, liquidator or administrative or other receiver of all or
any substantial part of its property, or if an administrator, liquidator
or administrative or other receiver of it or of all or a substantial
part of its property is appointed, or it admits in writing its inability
to pay or meet its debts as they may mature or suspends payment of its
debts, or if an order of any court is entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy
or insolvency law or if a public officer takes charge or control of the
Paying Agent or of its property or affairs for the purpose of
rehabilitation, administration or liquidation, the Issuer may forthwith
without notice terminate the appointment of the Paying Agent, in which
event notice shall be given to the Noteholders under Condition 11 as
soon as is practicable.
(3) All or any of the Paying Agents may resign their respective appointments
under this Agreement at any time by giving to the Issuer and, where
appropriate, the Fiscal Agent at least 90 days' prior written notice to
that effect provided that, so long as any of the Notes is outstanding,
the notice shall not, in the case of a Paying Agent, expire less than
45 days before any due date for the payment of interest. If the Fiscal
Agent shall resign or be removed pursuant to subclauses (1) or (2) above
or in accordance with this subclause (3), the Issuer shall promptly and
in any event within 30 days appoint a successor (being a leading bank
acting through its office in London). If the Issuer fails to appoint a
successor within such period, the Fiscal Agent may select a leading bank
acting through its office in London to act as Fiscal Agent hereunder and
the Issuer shall appoint that bank as the successor Fiscal Agent.
(4) Notwithstanding the provisions of subclauses (1), (2) and (3), so long
as any of the Notes is outstanding, the termination of the appointment
of a Paying Agent (whether by the Issuer or by the resignation of the
Paying Agent) shall not be effective unless upon the expiry of the
relevant notice there is:
(a) a Fiscal Agent; and
(b) a Paying Agent in the place or places required by Condition 5(6).
(5) Any successor Paying Agent shall execute and deliver to its predecessor,
the Issuer and the Fiscal Agent an instrument accepting the appointment
under this Agreement, and the successor Paying Agent, without any
further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of
the predecessor with like effect as if originally named as a Paying
Agent.
(6) If the appointment of a Paying Agent under this Agreement is terminated
(whether by the Issuer or by the resignation of the Paying Agent), the
Paying Agent shall:
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(a) on the date on which the termination takes effect deliver to its
successor Paying Agent (or, if none, the Fiscal Agent) all Notes
and Coupons surrendered to it but not yet destroyed and all records
concerning the Notes and Coupons maintained by it (except such
documents and records as it is obliged by law or regulation to
retain or not to release);
(b) pay to its successor Paying Agent (or, if none, to the Fiscal Agent) the
amounts (if any) held by it under this Agreement, but shall have no
other duties or responsibilities under this Agreement; and
(c) be entitled to the payment by the Issuer of the commissions, fees and
expenses payable in respect of its services under this Agreement
before the termination in accordance with the terms of clause 12.
18. Merger and Consolidation
Any corporation into which any Paying Agent may be merged or converted,
or any corporation with which a Paying Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which a Paying Agent shall be a party, or any corporation to which a
Paying Agent shall sell or otherwise transfer all or substantially all
of its assets shall, on the date when the merger, conversion,
consolidation or transfer becomes effective and to the extent permitted
by any applicable laws, become the successor Paying Agent under this
Agreement without the execution or filing of any paper or any further
act on the part of the parties to this Agreement, unless otherwise
required by the Issuer, and after the said effective date all references
in this Agreement to the relevant Paying Agent shall be deemed to be
references to such successor corporation. Written notice of any such
merger, conversion, consolidation or transfer shall immediately be given
to the Issuer by the relevant Paying Agent.
19. Notification of changes to Paying Agents
Following receipt of notice of resignation from a Paying Agent and after
appointing a successor or new Paying Agent or on giving notice to
terminate the appointment of any Paying Agent, the Fiscal Agent (on
behalf of and at the expense of the Issuer) shall give or cause to be
given not more than 45 days' nor less than 30 days' notice of the fact
to the Noteholders in accordance with the Conditions.
20. Change of Specified Office
If any Paying Agent determines to change its specified office it shall
give to the Issuer and the Fiscal Agent written notice of that fact
giving the address of the new specified office which shall be in the
same city and stating the date on which the change is to take effect,
which shall not be less than 45 days after the notice. The Fiscal Agent
(on behalf and at the expense of the Issuer) shall within 15 days of
receipt of the notice (unless the appointment of the relevant Paying
Agent is to terminate pursuant to clause 21 on or prior to the date of
the change) give or cause to be given not more than 45 days' nor less
than 30 days' notice of the change to the Noteholders in accordance with
the Conditions.
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21. Communications
Any notice required to be given under this Agreement to any of the
parties shall be delivered in person, sent by pre-paid post (first class
if inland, first class airmail if overseas) or by facsimile addressed to:
The Issuer: DENTSPLY International Inc.
570 W. College Avenue
York
Pennsylvania 17405-0872
United States
Facsimile No: 001 717 849 4753
(Attention: Brian Addison, Secretary)
The Fiscal Agent: Citibank, N.A.
Agency & Trust
5 Carmelite Street
London EC4Y 0PA
Facsimile No: 0044 20 7508 3878
(Attention: Citibank Agency and
Trust)
or such other address of which notice in writing has been given to the
other parties to this Agreement under the provisions of this clause.
Any such notice shall take effect, if delivered in person, at the time
of delivery, if sent by post, three days in the case of inland post or
seven days in the case of overseas post after despatch, and, in the case
of facsimile, 24 hours after the time of despatch, provided that in the
case of a notice given by facsimile transmission such notice shall
forthwith be confirmed by post. The failure of the addressee to receive
such confirmation shall not invalidate the relevant notice given by
facsimile.
22. Taxes and Stamp Duties
The Issuer agrees to pay any and all stamp and other documentary taxes
or duties which may be payable in connection with the execution,
delivery, performance and enforcement of this Agreement.
23. Amendments
This Agreement may be amended by the Issuer and the Fiscal Agent,
without the consent of any other Paying Agent or the Noteholders or
Couponholders, either:
(a) for the purpose of curing any ambiguity or of curing, correcting or
supplementing any defective provision contained in this Agreement;
or
(b) in any manner which is not materially prejudicial to the interests of
the Noteholders.
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Any modification made under subparagraph (a) or (b) shall be binding on
the Paying Agents, the Noteholders and the Couponholders and shall be
notified to the Noteholders in accordance with Condition 11 as soon as
practicable after it has been agreed.
24. Contracts (Rights of Third Parties) Act 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of
this Agreement, but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.
25. Governing Law and Submission to Jurisdiction
(1) This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
(2) The Issuer the Fiscal Agent and the Paying Agents irrevocably agree that
the courts of England are to have jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement and that
accordingly any suit, action or proceedings (together referred to as
"Proceedings") arising out of or in connection with this Agreement may
be brought in such courts.
(3) The Issuer, the Fiscal Agent and the Paying Agents irrevocably waive any
objection which any may have to the laying of the venue of any
Proceedings in any such courts and any claim that any such Proceedings
have been brought in an inconvenient forum and further irrevocably agree
that a judgment in any Proceedings brought in the English courts shall
be conclusive and binding upon them and may be enforced in the courts of
any other jurisdiction.
(4) Nothing contained in this clause shall limit any right of any parts to
this Agreement to take Proceedings in any other court of competent
jurisdiction, nor shall the taking of Proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(5) The Issuer appoints Denton Wilde Sapte at its office at 1 Fleet Place,
London EC4M 7WS as its agent for service of process, and undertakes
that, in the event of Denton Wilde Sapte ceasing so to act or ceasing to
be registered in England, it will appoint another person, as the Fiscal
Agent may approve, as its agent for service of process in England in
respect of any Proceedings.
(6) The Issuer:
(a) agrees to procure that, so long as any of the Notes remains outstanding,
there shall be in force an appointment of such a person with an
office in London with authority to accept service as aforesaid;
(b) agrees that failure by any such person to give notice of such service of
process to the Issuer shall not impair the validity of such service
or of any judgment based thereon;
(c)
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consents to the service of process in respect of any Proceedings by the
airmailing of copies, postage prepaid, to the Issuer in accordance
with clause 21; and
(d) agrees that nothing in this Agreement shall affect the right to serve
process in any other manner permitted by law.
26. Counterparts
This Agreement may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
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SCHEDULE 1
PART I
FORM OF THE TEMPORARY GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.
DENTSPLY INTERNATIONAL INC.
TEMPORARY GLOBAL NOTE
(euro)350,000,000 5.75 per cent. Notes due 2006
This temporary Global Note is issued in respect of the (euro)350,000,000 5.75
per cent. Notes due 2006 (the "Notes") of DENTSPLY International Inc. (the
"Issuer"). The Notes are issued subject to and have the benefit of an Agency
Agreement (the "Agency Agreement") dated 13th December, 2001 between the Issuer
and Citibank, N.A. as Fiscal Agent (the "Fiscal Agent"). The Notes are issued
subject to and with the benefit of the Conditions of the Notes (the
"Conditions") set out in Part II of Schedule 2 to the Agency Agreement.
1. Promise to Pay
Subject as provided in this temporary Global Note, the Issuer, for value
received, promises to pay the bearer upon presentation and surrender of
this temporary Global Note such sum as is equal to the principal amount
of the Notes represented by this temporary Global Note as shown in the
title of this temporary Global Note or such lesser amount as is shown by
the latest entry in Part I or Part II of the Schedule to this temporary
Global Note on 13th December, 2006 or on such earlier date as the
principal of this temporary Global Note may become due under the
Conditions and to pay interest on the principal sum for the time being
outstanding at the rate of 5.75 per cent. per annum from 13th December,
2001 payable annually in arrear on 13th December until payment of the
principal sum has been made or duly provided for in full together with
any other amounts as may be payable, all subject to and under the
Conditions.
2. Exchange for Permanent Global Note and Purchases
Upon (a) any exchange of the whole or a part of this temporary Global
Note for an interest in the permanent Global Note or for a definitive
Note, (b) receipt of instructions from Euroclear Bank or Clearstream,
Luxembourg (both as defined below) that, following the purchase by or on
behalf of the Issuer or any of its subsidiaries of the whole or a part of
this temporary Global Note, part is to be cancelled or (c) any redemption
of the whole or a part of this temporary
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Global Note, the portion of the principal amount of this temporary Global
Note so exchanged, purchased and cancelled or redeemed shall be entered
by or on behalf of the Fiscal Agent on Part I of the Schedule to this
temporary Global Note, whereupon the principal amount of this temporary
Global Note shall be reduced for all purposes by the amount so exchanged,
purchased and cancelled or redeemed and entered.
Any person who would, but for the provisions of this temporary Global
Note and of the Agency Agreement, otherwise be entitled to receive either
(i) an interest in the permanent Global Note or (ii) definitive Notes
shall not be entitled to require the exchange of an appropriate part of
this temporary Global Note for an interest in the permanent Global Note
or definitive Notes unless and until he shall have delivered or caused to
be delivered to Euroclear Bank S.A./N.V., as operator of the Euroclear
System ("Euroclear Bank") or Clearstream Banking, societe anonyme
("Clearstream, Luxembourg") a certificate in substantially the form of
the certificate attached as Exhibit B (copies of which form of
certificate will be available at the offices of Euroclear Bank in
Brussels and Clearstream, Luxembourg in Luxembourg and the specified
offices of each Paying Agent named in the Agency Agreement).
The permanent Global Note to be issued in exchange for interests in this
temporary Global Note will be substantially in the form set out in
Part II of Schedule 1 to the Agency Agreement.
The permanent Global Note will only have an entry made to represent
definitive Notes after the date which is 40 days after the closing date
for the Notes (the "Exchange Date").
On or after the Exchange Date, interests in this temporary Global Note
may be exchanged for interests in a duly executed and authenticated
permanent Global Note without charge and the Fiscal Agent or such other
person as the Fiscal Agent may direct (the "Exchange Agent") shall make
the appropriate entry on Part I of the Schedule to the permanent Global
Note, in full or partial exchange for this temporary Global Note, in
order that the permanent Global Note represents an aggregate principal
amount of Notes equal to the principal amount of this temporary Global
Note submitted for exchange. Notwithstanding the foregoing, no such
entry shall be made on the permanent Global Note unless there shall have
been presented to the Exchange Agent a certificate from Euroclear Bank or
Clearstream, Luxembourg substantially in the form of the certificate
attached as Exhibit A.
Notwithstanding the foregoing, where this temporary Global Note has been
exchanged in part for the permanent Global Note pursuant to the foregoing
and definitive Notes have been issued in exchange for the total amount of
Notes represented by the permanent Global Note pursuant to its terms
because Euroclear Bank and/or Clearstream, Luxembourg do not regard the
permanent Global Note to be fungible with such definitive Notes, then
interests in this temporary Global Note will no longer be exchangeable for
interests in the permanent Global Note but will be exchangeable, in full or
partial exchange, for duly executed and authenticated definitive Notes,
without charge, in the denominations of (euro)1,000, (euro)10,000 and
(euro)100,000 each with interest coupons attached, such definitive Notes to
be substantially in the form set out in Part I of Schedule 2 to the Agency
Agreement. Notwithstanding the foregoing, definitive Notes shall not be so
issued and delivered unless there shall have been presented to the Exchange
Agent a certificate from Euroclear Bank or Clearstream, Luxembourg
substantially in the form of the certificate attached as Exhibit A.
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In no event may the permanent Global Note or definitive Notes issued in
exchange for interests in this temporary Global Note be mailed to an
address within or otherwise delivered within the United States or its
possessions (including, for this purpose, Puerto Rico, Guam, American
Samoa, Wake Island, the U.S. Virgin Islands and the Northern Mariana
Islands).
3. Benefits
Until the entire principal amount of this temporary Global Note has been
extinguished in exchange for the permanent Global Note and/or definitive
Notes, this temporary Global Note shall (save as provided herein) in all
respects be entitled to the same benefits as the definitive Notes
referred to above, except that the holder of this temporary Global Note
shall only be entitled to receive any payment on this temporary Global
Note on presentation of certificates as provided below.
4. Payments
On and after the Exchange Date, no payment will be made on this temporary
Global Note unless exchange for an interest in the permanent Global Note
is improperly withheld or refused. Payments due in respect of Notes for
the time being represented by this temporary Global Note shall be made to
the bearer only upon presentation by Euroclear Bank or, as the case may
be, Clearstream, Luxembourg to the Fiscal Agent at its specified office
of a certificate, substantially in the form of the certificate attached
as Exhibit A, to the effect that Euroclear Bank, or as the case may be,
Clearstream, Luxembourg has received certificate substantially in the
form of the certificate attached as Exhibit B from qualified account
holders with respect to the payments due in respect of such Notes.
Payments of principal and interest in respect of Notes represented by
this temporary Global Note will, subject as provided herein, be made
against presentation for endorsement and, if no further payment falls to
be made in respect of the Notes represented hereby, surrender of this
temporary Global Note to the order of the Fiscal Agent or such other
Paying Agent as shall have been notified to the Noteholders for such
purposes.
Upon any payment in respect of the Notes represented by this temporary
Global Note, the amount so paid shall be entered by or on behalf of the
Fiscal Agent on Part II of the Schedule to this temporary Global Note.
In the case of any payment of principal the principal amount of this
temporary Global Note shall be reduced for all purposes by the amount so
paid and the remaining principal amount of this temporary Global Note
shall be entered by or on behalf of the Fiscal Agent on Part II of the
Schedule to this temporary Global Note.
5. Notices
For so long as all of the Notes are represented by this temporary Global
Note and/or the permanent Global Note and this temporary Global Note
and/or the permanent Global Note is/are held on behalf of Euroclear Bank
and/or Clearstream, Luxembourg, notices to Noteholders may be given by
delivery of the relevant notice to Euroclear Bank and/or
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Clearstream, Luxembourg (as the case may be) for communication to the
relevant persons who are for the time being shown in the records of
Euroclear Bank and/or Clearstream, Luxembourg as the holders of a
particular principal amount of the Notes rather than by publication as
required by Condition 11 provided that, so long as the Notes are admitted
to official listing on the London Stock Exchange, the London Stock
Exchange and any other relevant authority so agrees. Any such notice
shall be deemed to have been given to the Noteholders on the seventh day
after the day on which such notice is delivered to Euroclear Bank and/or
Clearstream, Luxembourg (as the case may be) as aforesaid.
6. Accountholders
For so long as any of the Notes is represented by one or/both of this
temporary Global Note and/or the permanent Global Note and such Global
Note(s) is/are held on behalf of Euroclear Bank and/or Clearstream,
Luxembourg, each person who is for the time being shown in the records of
Euroclear Bank and/or Clearstream, Luxembourg as the holder of a
particular nominal amount of such Notes (each an "Accountholder") (in
which regard any certificate or other document issued by Euroclear Bank
or Clearstream, Luxembourg as to the nominal amount of such Notes
standing to the account of any person shall be conclusive and binding for
all purposes save in the case of manifest error) shall be deemed to be
the holder of that nominal amount of Notes (and the bearer of the
relevant Global Note shall be deemed not to be the holder) for all
purposes (including for the purposes of any quorum requirements of, or
the right to demand a poll at, meetings of the Noteholders) other than
with respect to the payment of principal and interest on such Notes, the
right to which shall be vested, as against the Issuer and the Paying
Agents, solely in the bearer of the relevant Global Note in accordance
with and subject to its terms. Each Accountholder must look solely to
Euroclear Bank or Clearstream, Luxembourg, as the case may be, for its
share of each payment made to the bearer of the relevant Global Note.
Notes represented by this temporary Global Note are transferable in
accordance with the rules and procedures for the time being of Euroclear
Bank or Clearstream, Luxembourg as appropriate.
The Issuer covenants in favour of each Accountholder that it will make
all payments in respect of the principal amount of Notes for the time
being shown in the records of Euroclear Bank and/or Clearstream,
Luxembourg as being held by the Accountholder and represented by this
temporary Global Note to the bearer of this temporary Global Note in
accordance with clause 1 above and acknowledges that each Accountholder
may take proceedings to enforce this covenant and any of the other rights
which it has under this temporary Global Note directly against the Issuer.
7. Prescription
Claims against the Issuer in respect of principal and interest on the
Notes represented by this temporary Global Note will be prescribed after
10 years (in the case of principal) and five years (in the case of
interest) from the Relevant Date (as defined in Condition 7).
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8. Cancellation
Cancellation of any Note represented by this temporary Global Note and
required by the Conditions to be cancelled following its redemption or
purchase will be effected by endorsement by or on behalf of the Fiscal
Agent of the reduction in the principal amount of the temporary Global
Note on Part I of the Schedule to this temporary Global Note.
9. Authentication
This temporary Global Note shall not become valid or enforceable for any
purpose unless and until it has been authenticated by or on behalf of the
Fiscal Agent.
10. Governing Law
This temporary Global Note is governed by, and shall be construed in
accordance with, English law. No rights are conferred on any person
under the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of this temporary Global Note, but this does not affect any right or
remedy of any person which exists or is available apart from that Act.
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IN WITNESS whereof this temporary Global Note has been executed as a deed
poll on behalf of the Issuer.
Executed as a deed )
by DENTSPLY INTERNATIONAL INC. )
and signed and delivered as a deed )
on its behalf by )
)
in the presence of: )
Witness:
Signature:................
Name: ..................
Address:..................
CERTIFICATE OF AUTHENTICATION
This is the temporary Global Note
described in the Agency Agreement.
By or on behalf of Citibank, N.A.
(without recourse, warranty or liability)
......................................
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THE SCHEDULE
Part I
EXCHANGES FOR THE PERMANENT GLOBAL NOTE/DEFINITIVE NOTES
AND OTHER CANCELLATIONS
The following exchanges of a part of this temporary Global Note for interests
in the permanent Global Note/definitive Notes and other cancellations
(whether following a purchase by the Issuer or any of its subsidiaries or
redemption) of a part of the aggregate principal amount of this temporary
Global Note have been made:
Part of the
aggregate
principal
amount of
this
temporary
Global Note Remaining
exchanged Part of the principal
for aggregate amount of Notation
interests in principal this made
the amount of temporary by or
permanent this Global Note on
Date of Global Note temporary following behalf
exchange or Global Note exchange or of the
or other definitive otherwise other Fiscal
cancellation Notes cancelled cancellation Agent
(euro) (euro) (euro)
- -------------------------------------------------------------------------------
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Part II
PAYMENTS
The following payments in respect of the Notes represented by this temporary
Global Note have been made:
Remaining Notation
principal made
amount of by or
this on
Date of Amount of temporary behalf
payment interest Amount of Global Note of the
paid principal following Fiscal
paid payment Agent
(euro) (euro) (euro)
- -------------------------------------------------------------------------------
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EXHIBIT A
DENTSPLY INTERNATIONAL INC.
(euro)350,000,000 5.75 per cent. Notes due 2006
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Agency Agreement, as of the date hereof, (euro)[ ] principal
amount of the above-captioned Securities (i) is owned by persons that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States federal income taxation regardless of its source ("United States
persons"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own
account or for resale, or (b) acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Issuer or the Issuer's agent
that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that
United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section 230.903(b) (2)
or (3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to such principal amount of
Securities set forth above that, except as set forth below, we have received
in writing, by tested telex or by electronic transmission, from our Member
Organisations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect. As used in this
paragraph the term "U.S. person" has the meaning given to it by Regulation S
under the Act.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from
any of our Member Organisations to the effect that the statements made by
such Member Organisations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, exercise of any rights or collection
of any interest) are no longer true and cannot be relied upon as of the date
hereof.
D7
We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced
or threatened in connection with which this certification is or would be
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Dated1
[Euroclear Bank S.A./N.V. as operator of the
Euroclear System] [Clearstream Banking, societe anonyme]
By ...................................
Authorised Signatory
D7
EXHIBIT B
DENTSPLY INTERNATIONAL INC.
(euro)350,000,000 5.75 per cent. Notes due 2006
(the "Securities")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of
which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that (a) are foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b)
acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise the Issuer or the Issuer's agent that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition if the owner of the Securities is a United States or foreign
financial institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)) this is further to certify that such
financial institution has not acquired the Securities for the purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(b) (2)
or (3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, the
Securities are beneficially owned by (a) non-U.S. person(s) or (b) U.S.
person(s) who purchased the Securities in transactions which did not require
registration under the Act; As used in this paragraph the term "U.S. person"
has the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your documented procedures if
any applicable statement herein is not correct on such date, and in the
absence of any such notification it may be assumed that this certification
applies as of such date.
This certification excepts and does not relate to (euro)[ ] of such interest in
the above Securities in respect of which we are not able to certify and as to
which we understand exchange and delivery of definitive Securities (or, if
relevant, exercise of any rights or collection of any interest) or an interest
in a permanent global security cannot be made until we do so certify.
D7
We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced
or threatened in connection with which this certification is or would be
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Dated1
By ......................
Qualified Account Holder
D7
PART II
FORM OF THE PERMANENT GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.
DENTSPLY INTERNATIONAL INC.
PERMANENT GLOBAL NOTE
(euro)350,000,000 5.75 per cent. Notes due 2006
This permanent Global Note is issued in respect of the (euro)350,000,000 5.75
per cent. Notes due 2006 (the "Notes") of DENTSPLY International Inc. (the
"Issuer"). The Notes are initially represented by a temporary Global Note
interests in which will be exchanged in accordance with the terms of the
temporary Global Note for interests in this permanent Global Note and, if
applicable, definitive Notes. The Notes are issued subject to and with the
benefit of an Agency Agreement (the "Agency Agreement") dated 13th December,
2001 between the Issuer and Citibank, N.A. as Fiscal Agent (the "Fiscal Agent").
The Notes are issued subject to and with the benefit of the Conditions of the
Notes (the "Conditions") set out in Part II of Schedule 2 to the Agency
Agreement.
1. Promise to Pay
Subject as provided in this permanent Global Note, the Issuer, for value
received, promises to pay the bearer upon presentation and surrender of
this permanent Global Note such sum as is equal to the principal amount
of the Notes represented by this permanent Global Note as shown by the
latest entry in Part I, Part II or Part III of the Schedule to this
permanent Global Note on 13th December, 2006 or on such earlier date as
the principal of this permanent Global Note may become due under the
Conditions and to pay interest on the principal sum for the time being
outstanding at the rate of 5.75 per cent. per annum from 13th December,
2001 payable annually in arrear on 13th December until payment of the
principal sum has been made or duly provided for in full together with
any other amounts as may be payable, all subject to and under the
Conditions.
2. Exchange of Interests in the Temporary Global Note for Interests in this
Permanent Global Note
Upon any exchange of an interest in the temporary Global Note
representing the Notes for an interest in this permanent Global Note, the
Fiscal Agent shall make the appropriate entry in Part I of the Schedule
to this permanent Global Note in order to indicate the principal amount
of Notes represented by this permanent Global Note following such
exchange.
D7
3. Exchange for Definitive Notes and Purchases
This permanent Global Note will be exchangeable in whole but not in part
(free of charge to the holder) for definitive Notes only (i) if an event
of default (as set out in Condition 9) has occurred and is continuing,
(ii) if both Euroclear Bank S.A./N.V. as operator of the Euroclear System
("Euroclear Bank") and Clearstream Banking, societe anonyme
("Clearstream, Luxembourg") are closed for business for a continuous
period of 14 days (other than by reason of holiday, statutory or
otherwise) or announce an intention permanently to cease business or do
in fact do so and no successor clearing system is available, (iii) if the
Issuer has or will become subject to adverse tax consequences which would
not be suffered were the Notes in definitive form or (iv) if the Issuer
receives a notice from or on behalf of one or more Accountholders (as
defined below) requiring such exchange. Thereupon (in the case of (i),
(ii) and (iv) above) the holder of this permanent Global Note (acting on
the instructions of one or more Accountholders) may give notice to the
Fiscal Agent and the Issuer, and (in the case of (iii) above) the Issuer
may give notice to the Fiscal Agent and the Noteholders, of its intention
to exchange this permanent Global Note for definitive Notes on or after
the Exchange Date (as defined below).
On or after the Exchange Date the holder of this permanent Global Note may
or, in the case of (iii) above, shall surrender this permanent Global Note
to or to the order of the Fiscal Agent. In exchange for this permanent
Global Note the Issuer will deliver, or procure the delivery of, an equal
aggregate principal amount of definitive Notes in the denominations of
(euro)1,000, (euro)10,000 and (euro)100,000 (having attached to them all
Coupons in respect of interest which has not already been paid on this
permanent Global Note), security printed in accordance with any applicable
legal and stock exchange requirements and in or substantially in the form
set out in Part I of Schedule 2 of the Agency Agreement. On exchange of
this permanent Global Note, the Issuer will procure that it is cancelled
and, if the holder so requests, returned to the holder together with any
relevant definitive Notes.
In no event may definitive Notes issued in exchange for interests in this
permanent Global Note be mailed to an address within or otherwise
delivered within the United States or its possessions (including, for
this purpose, Puerto Rico, Guam, American Samoa, Wake Island, the U.S.
Virgin Islands and the Northern Mariana Islands).
"Exchange Date" means a day specified in the notice requiring exchange
falling not less than 30 days after that on which such notice is given,
being a day on which banks are open for business in the place in which
the specified office of the Fiscal Agent is located and, except in the
case of exchange pursuant to (ii) above, in the place in which the
relevant clearing systems are located.
Upon (a) receipt of instructions from Euroclear Bank or Clearstream,
Luxembourg that, following the purchase by or on behalf of the Issuer or
any of its subsidiaries of the whole or a part of this permanent Global
Note, part is to be cancelled or (b) any redemption of the whole or a
part of this permanent Global Note, the portion of the principal amount
of this permanent Global Note so purchased and cancelled or redeemed
shall be entered by or on behalf of the Fiscal Agent on Part II or Part
III of the Schedule to this permanent Global Note, as they case may be,
whereupon the principal amount of this permanent Global Note shall be
reduced for all purposes by the amount so purchased and cancelled or
redeemed and entered.
D7
4. Benefits
Until the entire principal amount of this permanent Global Note has been
extinguished in exchange for definitive Notes or in any other manner
envisaged by the Conditions, this permanent Global Note shall (save as
provided herein) in all respects be entitled to the same benefits as the
definitive Notes referred to above.
5. Payments
Payments due in respect of Notes for the time being represented by this
permanent Global Note shall be made to the bearer of this permanent
Global Note.
Payments of principal and interest in respect of Notes represented by
this permanent Global Note will, subject as provided herein, be made
against presentation for endorsement and, if no further payment falls to
be made in respect of the Notes represented hereby, surrender of this
permanent Global Note to the order of the Fiscal Agent or such other
Paying Agent as shall have been notified to the Noteholders for such
purposes.
Upon any payment in respect of the Notes represented by this permanent
Global Note, the amount so paid shall be entered by or on behalf of the
Fiscal Agent on Part III of the Schedule to this permanent Global Note.
In the case of any payment of principal the principal amount of this
permanent Global Note shall be reduced for all purposes by the amount so
paid and the remaining principal amount of this permanent Global Note
shall be entered by or on behalf of the Fiscal Agent on Part III of the
Schedule to this permanent Global Note.
6. Notices
For so long as all of the Notes are represented by one or both of this
permanent Global Note and/or the temporary Global Note and such Global
Note(s) is/are held on behalf of Euroclear Bank and/Clearstream,
Luxembourg, notices to Noteholders may be given by delivery of the
relevant notice to Euroclear Bank and/or Clearstream, Luxembourg (as the
case may be) for communication to the relative Accountholders rather than
by publication as required by Condition 11, provided that, so long as the
Notes are admitted to official listing on the London Stock Exchange, the
London Stock Exchange and any other relevant authority so agrees. Any
such notice shall be deemed to have been given to the Noteholders on the
seventh day after the day on which such notice is delivered to Euroclear
Bank and/or Clearstream, Luxembourg (as the case may be) as aforesaid.
7. Accountholders
For so long as any of the Notes is represented by one or/both of this
permanent Global Note and/or the temporary Global Note and such Global
Note(s) is/are held on behalf of Euroclear Bank and/or Clearstream,
Luxembourg, each person who is for the time being shown in the records of
Euroclear Bank and/or Clearstream, Luxembourg as the holder of a
particular nominal amount of such Notes (each an "Accountholder") (in
which regard any certificate or
D7
other document issued by Euroclear Bank or Clearstream, Luxembourg as to
the nominal amount of such Notes standing to the account of any person
shall be conclusive and binding for all purposes save in the case of
manifest error) shall be deemed to be the holder of that nominal amount
of Notes (and the bearer of the relevant Global Note shall be deemed not
to be the holder) for all purposes (including for the purposes of any
quorum requirements of, or the right to demand a poll at, meetings of the
Noteholders) other than with respect to the payment of principal and
interest on such Notes, the right to which shall be vested, as against
the Issuer and the Paying Agents, solely in the bearer of the relevant
Global Note in accordance with and subject to its terms. Each
Accountholder must look solely to Euroclear Bank or Clearstream,
Luxembourg, as the case may be, for its share of each payment made to the
bearer of the relevant Global Note.
Notes represented by this permanent Global Note are transferable in
accordance with the rules and procedures for the time being of Euroclear
Bank or Clearstream, Luxembourg as appropriate.
The Issuer covenants in favour of each Accountholder that it will make
all payments in respect of the principal amount of Notes for the time
being shown in the records of Euroclear Bank and/or Clearstream,
Luxembourg as being held by the Accountholder and represented by this
permanent Global Note to the bearer of this permanent Global Note in
accordance with clause 1 above and acknowledges that each Accountholder
may take proceedings to enforce this covenant and any of the other rights
which it has under this permanent Global Note directly against the Issuer.
8. Prescription
Claims against the Issuer and the Guarantor in respect of principal and
interest on the Notes represented by this permanent Global Note will be
prescribed after 10 years (in the case of principal) and five years (in
the case of interest) from the Relevant Date (as defined in Condition 7).
9. Cancellation
Cancellation of any Note represented by this permanent Global Note and
required by the Conditions to be cancelled following its redemption or
purchase will be effected by endorsement by or on behalf of the Fiscal
Agent of the reduction in the principal amount of this permanent Global
Note on Part II or Part III, as the case may be, of the Schedule to this
permanent Global Note.
10. Authentication
This permanent Global Note shall not become valid or enforceable for any
purpose unless and until it has been authenticated by or on behalf of the
Fiscal Agent.
11. Governing Law
This permanent Global Note is governed by, and shall be construed in
accordance with, English law. No rights are conferred on any person
under the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of this permanent Global Note, but this does not affect any right or
remedy of any person which exists or is available apart from that Act.
D7
IN WITNESS whereof this permanent Global Note has been executed as a deed
poll on behalf of the Issuer.
Executed as a deed )
by DENTSPLY INTERNATIONAL INC. )
and signed and delivered as a deed on )
its behalf by )
in the presence of: )
Witness:
Signature:................
Name: ..................
Address:..................
CERTIFICATE OF AUTHENTICATION
This is the permanent Global Note
described in the Agency Agreement.
By or on behalf of Citibank, N.A.
(without recourse, warranty or liability)
......................................
D7
THE SCHEDULE
Part I
EXCHANGES OF THE TEMPORARY GLOBAL NOTE
The following exchanges of part of the temporary Global Note for interests in
this permanent Global Note have been made.
Date of Part of
Exchange aggregate
principal Aggregate
amount of principal
the amount of
temporary Notes
Global Note represented by
exchanged this permanent
for this Global Note Notation made by
permanent following or on behalf of
Global Note exchange the Fiscal Agent
(euro) (euro)
D7
Part II
- -------------------------------------------------------------------------------
PURCHASES AND CANCELLATIONS
The following purchases and cancellations of a part of the aggregate
principal amount of this permanent Global Note have been made:
Part of the
aggregate
principal
amount of Remaining
this principal amount
permanent of this
Global Note permanent Global Notation made by
Date of purchased Note following or on behalf of
cancellation and cancelled cancellation the Fiscal Agent
(euro) (euro)
- -------------------------------------------------------------------------------
D7
Part III
PAYMENTS
The following payments in respect of the Notes represented by this permanent
Global Note have been made:
Notation
Remaining made
principal by or
amount of on
this behalf
permanent of
Amount of Amount of Global Note the
Date of interest principal following Fiscal
payment paid paid payment Agent
(euro) (euro) (euro)
- -------------------------------------------------------------------------------
D7
SCHEDULE 2
PART I
FORM OF DEFINITIVE NOTE AND COUPON
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE
(Face of Note)
- ---------------------- [ISIN] 00 00000
000000
- -------------------------------------------------------------------------------
DENTSPY International Inc.
(incorporated in the State of Delaware, U.S.A.)
(euro)350,000,000 5.75 per cent. Notes due 2006
The issue of the Notes was authorised by a resolution of the Board of
Directors of (the "Issuer") passed on 23rd May, 2001.
This Note forms one of a series of Notes issued as bearer Notes in the
denominations of (euro)1,000, (euro)10,000 and (euro)100,000 each in an
aggregate principal amount of (euro)350,000,000.
The Issuer for value received and subject to and in accordance with the
Conditions endorsed hereon hereby promises to pay to the bearer on 13th
December, 2006 (or on such earlier date as the principal sum (as determined
under the Conditions) may become repayable under the said Conditions) the
principal sum of:
(euro)1,000/10,000/100,000 [one/ten/one hundred] thousand euro)
together with interest on the said principal sum at the rate of 5.75 per
cent. per annum payable annually in arrear on 13th December and together with
such other amounts as may be payable, all subject to and under the
Conditions.
The Notes are issued pursuant to an Agency Agreement (the "Agency Agreement")
dated 13th December, 2001 between the Issuer and Citibank, N.A. as Fiscal
Agent. The Notes have the benefit of, and are subject to, the provisions
contained in the Agency Agreement and the Conditions.
Neither this Note nor any of the Coupons relating to this Note shall become
valid or enforceable for any purpose unless and until this Note has been
authenticated by or on behalf of the Fiscal Agent.
D7
IN WITNESS WHEREOF this Note has been executed on behalf of the Issuer.
Dated as of 13th December, 2001
Issued in London, England.
DENTSPLY International Inc.
By:
- ---------------------------------
- --------------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Notes
described
in the Agency Agreement.
By or on behalf of Citibank,
N.A.
as Fiscal Agent
(without recourse, warranty or
liability)
- ---------------------------------
D7
(Reverse of Note)
CONDITIONS OF THE NOTES
(as set out in Part II of this Schedule 2)
FISCAL AND PRINCIPAL PAYING AGENT
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
and/or such other or further Fiscal Agent or Paying Agents and/or specified
offices as may from time to time be appointed by the Issuer and notice of
which has been given to the Noteholders.
D7
- FORM OF COUPON -
(Face of Coupon)
DENTSPLY International Inc.
Euro 350,000,000 5.75 per cent. Notes due 2006
Coupon for the amount due under
the Conditions of the Notes on
13th December, Coupon due
[2002/2003/2004/2005/2006] on
This Coupon is payable to bearer, 13th December,
separately negotiable and subject [2002/2003/2004/2005/
to the Conditions. 2006]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.
(Reverse of Coupon)
FISCAL AND PRINCIPAL PAYING AGENT:
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
D7
PART II
TERMS AND CONDITIONS OF THE NOTES
(to be incorporated from the final Offering Circular)
D7
CONDITIONS OF THE NOTES
The following is the text of the Conditions of the Notes
which (subject to modification) will be endorsed on each Note in
definitive form (if issued):
The e350,000,000 * per cent. Notes due 2006 (the "Notes",
which expression shall in these Conditions, unless the context
otherwise requires, include any further notes issued pursuant to
Condition 13 and forming a single series with the Notes) of
DENTSPLY International Inc. (the "Issuer") are issued subject
to and with the benefit of an Agency Agreement dated * December,
2001 (such agreement as amended and/or supplemented and/or
restated from time to time, the "Agency Agreement") made
between the Issuer, Citibank, N.A. as initial fiscal agent and
principal paying agent (the "Fiscal Agent") and the other
initial paying agents named in the Agency Agreement (together
with the Fiscal Agent, the "Paying Agents").
The statements in these Conditions include summaries of, and
are subject to, the detailed provisions of and definitions in the
Agency Agreement. Copies of the Agency Agreement are available
for inspection during normal business hours by the holders of the
Notes (the "Noteholders") and the holders of the interest
coupons appertaining to the Notes (the "Couponholders" and the
"Coupons", respectively) at the specified office of each of the
Paying Agents. The Noteholders and the Couponholders are entitled
to the benefit of, are bound by, and are deemed to have notice
of, all the provisions of the Agency Agreement applicable to
them. References in these Conditions to the Fiscal Agent and the
Paying Agents shall include any successor appointed under the
Agency Agreement.
1. FORM, DENOMINATION AND TITLE
(1) Form and Denomination
The Notes are in bearer form, serially numbered, in the
denominations of e1,000, e10,000 and
e100,000 each with Coupons attached on issue.
(2) Title
Title to the Notes and to the Coupons will pass by delivery.
(3) Holder Absolute Owner
The Issuer and any Paying Agent may (to the fullest extent
permitted by applicable laws) deem and treat the holder of any
Note or Coupon as the absolute owner for all purposes (whether or
not the Note or Coupon shall be overdue and notwithstanding any
notice of ownership or writing on the Note or Coupon or any
notice of previous loss or theft of the Note or Coupon).
2. STATUS
The Notes and the Coupons are direct, unconditional and (subject
to the provisions of Condition 3) unsecured obligations of the
Issuer and (subject as provided above) rank and will rank pari
passu, without any preference among themselves, with all other
outstanding unsecured and unsubordinated obligations of the
Issuer, present and future, but, in the event of insolvency, only
to the extent permitted by applicable laws relating to creditors'
rights.
3. NEGATIVE PLEDGE
(1) Negative Pledge
So long as any of the Notes remains outstanding, the Issuer will
not, and will procure that none of its Subsidiaries will, create
or have outstanding any mortgage, charge, lien, pledge or other
security interest (each a "Security Interest") other than a
Permitted Security Interest upon, or with respect to, any of its
present or future business, undertaking, assets or revenues
(including any uncalled capital) to secure any Relevant
Indebtedness (as defined below), unless the Issuer shall, in the
case of the creation by it of a Security Interest, before or at
the same time and, in any other case, promptly, take any and all
action necessary to ensure that:
(a) all amounts payable by it under the Notes and the Coupons are
secured by the Security
Interest equally and rateably with the Relevant Indebtedness; or
(b) such other Security Interest or other arrangement (whether or
not it includes the giving of a Security Interest) is provided as
shall be approved by an Extraordinary Resolution (which is
defined in the Agency Agreement as a resolution duly passed by a
majority of not less than three-fourths of the votes cast) of the
Noteholders.
(2) Interpretation
For the purposes of these Conditions:
(a) "Permitted Security Interest" means a Security Interest
granted by any company prior to its becoming a Subsidiary of the
Issuer provided that (i) the Security Interest shall not have
been granted in contemplation of such company becoming a
Subsidiary, (ii) the principal amount of Relevant Indebtedness
secured by such Security Interest is not increased or extended in
maturity after such company becomes a Subsidiary (other than
under arrangements entered into prior to such company becoming a
Subsidiary but not entered into in contemplation of its becoming
a Subsidiary) or in contemplation of such company becoming a
Subsidiary and (iii) the Security Interest is not extended in
scope after such company becomes a Subsidiary (other than under
arrangements entered into prior to such company becoming a
Subsidiary but not entered into in contemplation of its becoming
a Subsidiary) or in contemplation of such company becoming a
Subsidiary;
(b) "Relevant Indebtedness" means (i) any present or future
indebtedness (whether being
principal, premium, interest or other amounts) for or in respect
of any notes, bonds,
debentures, debenture stock, loan stock or other similar
securities and (ii) any guarantee or
indemnity of any such indebtedness; and
(c) "Subsidiary" means, in relation to the Issuer, a company
(i) in which the Issuer holds a
majority of the voting rights, (ii) of which the Issuer is a
member and has the right to appoint
or remove a majority of its board of directors or (iii) of which
the Issuer is a member and in
which the Issuer controls (whether or not pursuant to an
agreement with other shareholders
or members) a majority of the voting rights and includes any
company which is itself a
subsidiary (on the basis of one of the above tests) of a
subsidiary of the Issuer.
4. INTEREST
(1) Interest Rate and Interest Payment Dates
The Notes bear interest from and including December, 2001 at the
rate of per cent. per annum,
payable annually in arrear on * December (each an "Interest
Payment Date"). The first payment
(representing a full year's interest) shall be made on *
December, 2002.
(2) Interest Accrual
Each Note will cease to bear interest from and including its due
date for redemption unless, upon
due presentation, payment of the principal in respect of the Note
is improperly withheld or refused
or unless default is otherwise made in respect of payment. In
such event, interest will continue to
accrue until whichever is the earlier of:
(a) the date on which all amounts due in respect of such Note
have been paid; and
(b) five days after the date on which the full amount of the
moneys payable in respect of such
Notes has been received by the Fiscal Agent and notice to that
effect has been given to the
Noteholders in accordance with Condition 11.
D7
(3) Calculation of Broken Interest
When interest is required to be calculated in respect of a period
of less than a full year, it shall be calculated on the basis of
(a) the actual number of days in the period from and including
the date from which interest begins to accrue (the "Accrual
Date") to but excluding the date on which it falls due divided
by (b) the actual number of days from and including the Accrual
Date to but excluding the next following Interest Payment Date.
5. PAYMENTS
(1) Payments in respect of Notes
Payments of principal and interest in respect of each Note will
be made against presentation and surrender (or, in the case of
part payment only, endorsement) of the Note, except that payments
of interest due on an Interest Payment Date will be made against
presentation and surrender (or, in the case of part payment only,
endorsement) of the relevant Coupon, in each case at the
specified office outside the United States and its possessions of
any of the Paying Agents.
(2) Method of Payment
Payments will be made by credit or transfer to a euro account (or
any other account to which euro may be credited or transferred)
specified by the payee or, at the option of the payee, by euro
cheque. In no event will an interest payment with respect to a
Note be made by transfer to an account maintained by the payee
with a bank in the United States or its possessions or by cheque
mailed to any address in the United States or its possessions.
(3) Missing Unmatured Coupons
Each Note should be presented for payment together with all
relative unmatured Coupons, failing which the full amount of any
relative missing unmatured Coupon (or, in the case of payment not
being made in full, that proportion of the full amount of the
missing unmatured Coupon which the amount so paid bears to the
total amount due) will be deducted from the amount due for
payment. Each amount so deducted will be paid in the manner
mentioned above against presentation and surrender (or, in the
case of part payment only, endorsement) of the relative missing
Coupon at any time before the expiry of 10 years after the
Relevant Date (as defined in Condition 7) in respect of the
relevant Note (whether or not the Coupon would otherwise have
become void pursuant to Condition 8).
(4) Payments subject to Applicable Laws
Payments in respect of principal and interest on Notes are
subject in all cases to any fiscal or other laws and regulations
applicable in the place of payment, but without prejudice to the
provisions of Condition 7.
(5) Payment only on a Presentation Date
A holder shall be entitled to present a Note or Coupon for
payment only on a Presentation Date and shall not, except as
provided in Condition 4, be entitled to any further interest or
other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 8):
(a) is or falls after the relevant due date;
(b) is a Business Day in the place of the specified office of the
Paying Agent at which the Note or Coupon is presented for
payment; and
(c) is a TARGET Settlement Day.
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In this Condition, "Business Day" means, in relation to any
place, a day on which commercial banks and foreign exchange
markets settle payments and are open for general business
(including dealing in foreign exchange and foreign currency
deposits) in that place and "TARGET Settlement Day" means a day
on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open.
(6) Initial Paying Agents
The names of the initial Paying Agents and their initial
specified offices are set out at the end of these Conditions. The
Issuer reserves the right at any time to vary or terminate the
appointment of any Paying Agent and to appoint additional or
other Paying Agents provided that it will at all times maintain a
Paying Agent having its specified office in a European city
which, so long as the Notes are admitted to official listing on
the Official List of the UK Listing Authority and to trading on
theLondon Stock Exchange, shall be London or such other place as
the London Stock Exchange or any other relevant authority may
approve. In addition, if any European Union Directive on the
taxation of savings implementing the conclusions of the ECOFIN
Council meeting of 26th-27th November, 2000 or any law
implementing or complying with, or introduced in order to conform
to, such Directive is introduced, the Issuer will ensure that
there is a Paying Agent in a Member State (if any) of the
European Union that will not be obliged to withhold or deduct tax
pursuant to any such Directive or law. Notice of any termination
or appointment and of any changes in specified offices shall be
given to the Noteholders promptly by the Issuer in accordance
with Condition 11.
6. REDEMPTION AND PURCHASE
(1) Redemption at Maturity
Unless previously redeemed or purchased and cancelled as provided
below, the Issuer will redeem
the Notes at their principal amount on * December, 2006.
(2) Redemption for Taxation Reasons
If:
(a) (i) as a result of any change in, or amendment to, the laws
or regulations of the United States or any State therein, or any
change in the official interpretation of such laws or
regulations, which change or amendment becomes effective after *
December, 2001, on the next Interest Payment Date the Issuer
would be required to pay additional amounts as provided or
referred to in Condition 7 and (ii) the requirement cannot be
avoided by the Issuer taking reasonable measures available to it,
the Issuer may at its option, having given not less than 30 nor
more than 60 days' notice to the Noteholders in accordance with
Condition 11 (which notice shall be irrevocable), redeem all the
Notes, but not some only, at any time at their principal amount
together with interest accrued to but excluding the date of
redemption, provided that no notice of redemption shall be given
earlier than 90 days before the earliest date on which the Issuer
would be required to pay the additional amounts were a payment in
respect of the Notes then due. Prior to the publication of any
notice of redemption pursuant to this paragraph, the Issuer shall
deliver to the Fiscal Agent a certificate signed by two officers
of the Issuer whose names appear on a list of officers authorised
for the purpose and previously supplied to the Fiscal Agent by
the Issuer stating that the requirement referred to in (i) above
will apply on the next Interest Payment Date and cannot be
avoided by the Issuer taking reasonable measures available to it
and an opinion of independent legal advisers of recognised
standing to the effect that the Issuer has or will become obliged
to pay such additional amounts as a result of the change or
amendment; or
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(b) the Issuer determines that any payment made outside the
United States by it or any Paying Agent of principal or interest
due in respect of the Notes or Coupons would, under any present
or future laws or regulations of the United States, be subject to
any certification, documentation, information or other reporting
requirement of any kind, the effect of which requirement would be
the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity
of a beneficial owner of such Note or Coupon who is a United
States Alien (as defined in Condition 7(3)) (other than such a
requirement (I) which would not be applicable to a payment made
by the Issuer or any of its Paying Agents (A) directly to the
beneficial owner or (B) to a custodian, nominee or other agent of
the beneficial owner or (ii) which can be satisfied by such
custodian, nominee or other agent certifying to the effect that
such beneficial owner is a United States Alien, provided that, in
each case referred to in (i)(B) and (ii), payment by such
custodian, nominee or agent to such beneficial owner is not
otherwise subject to any such requirement), the Issuer will, at
its election, either (x) redeem all (but not some only) of the
Notes at their principal amount together with interest accrued to
but excluding the date of redemption or (y) if and so long as the
provisions of Condition 7(2) are satisfied, pay the additional
amounts specified in such paragraph. The Issuer will publish
prompt notice of its election (the "Determination Notice"),
stating the effective date of such certification, documentation,
information or other reporting requirement, whether the Issuer
has elected to redeem the Notes or to pay such additional amounts
and (if applicable) the last date by which the redemption of the
Notes must take place. If the Issuer elects to redeem such Notes,
such redemption will take place on such date, not later than one
year after the publication of the Determination Notice, as the
Issuer may specify by notice to the Noteholders in accordance
with Condition 11 at least 30 days before the date fixed for
redemption. Notwithstanding the foregoing, the Issuer will not so
redeem the Notes if the Issuer subsequently determines, not less
than 30 days prior to the redemption date, that subsequent
payments in respect of the Notes or Coupons would not be subject
to any such certification, documentation, information or other
reporting requirement, in which case the Issuer will publish
prompt notice of such determination and any earlier redemption
notice will be revoked and of no further effect.
(3) Purchases
The Issuer or any of its Subsidiaries (as defined above) may at
any time purchase Notes (provided that all unmatured Coupons
appertaining to the Notes are purchased with the Notes) in any
manner and at any price. If purchases are made by tender, tenders
must be available to all Noteholders alike.
(4) Cancellations
All Notes which are (a) redeemed or (b) purchased by or on behalf
of the Issuer or any of its
Subsidiaries will forthwith be cancelled, together with all
relative unmatured Coupons attached to
the Notes or surrendered with the Notes, and accordingly may not
be reissued or resold.
(5) Notices Final
Upon the expiry of any notice as is referred to in paragraph (2)
above the Issuer shall be bound to
redeem the Notes to which the notice refers in accordance with
the terms of such paragraph.
7. TAXATION
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(1) Payment without Withholding
All payments in respect of the Notes and Coupons by or on behalf
of the Issuer shall be made without withholding or deduction for,
or on account of, any present or future taxes, duties,
assessments or governmental charges imposed or levied by or on
behalf of the United States or any political subdivision or any
authority thereof or therein, unless the withholding or deduction
is required by law. In that event, the Issuer will pay such
additional amounts as may be necessary in order that the net
amounts received by the Noteholders and Couponholders after the
withholding or deduction shall equal the respective amounts which
otherwise would have been receivable in respect of the Notes or,
as the case may be, Coupons in the absence of the withholding or
deduction; except that no additional amounts shall be payable in
respect of a withholding or deduction on account of any one or
more of the following:
(a) any tax, assessment or other governmental charge which would
not have been imposed but
for (i) the existence of any present or former connection between
such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such
holder, if such holder is an estate, a trust, a partnership, a
corporation or another entity, as
the case may be) and the United States or any political
subdivision or territory or possession
thereof, including, without limitation, such holder (or such
fiduciary, settlor, beneficiary,
member, shareholder or possessor of a power over) being or having
been a citizen or resident
or treated as a resident thereof or being or having been present
or engaged in trade or
business therein or having or having had a permanent
establishment therein or otherwise
having or having had some connection with the United States or
such political subdivision,
territory or possession other than the mere holding or ownership
of a Note or Coupon or (ii)
such holder's present or former status as (A) a personal holding
company, foreign personal
holding company or a controlled foreign corporation with respect
to the United States, (B) a
corporation which accumulates earnings to avoid United States
federal income tax, (C) a
private foundation or other exempt organisation or (D) a bank
receiving interest described in
section 881(C)(3)(A) of the United States Internal Revenue Code
of 1986, as amended;
(b) any tax, assessment or other governmental charge which would
not have been so imposed but
for presentation by the holder of a Note or Coupon for payment on
a date more than 15 days
after the Relevant Date;
(c) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax,
assessment or other governmental charge;
(d) any tax, assessment or other governmental charge which would
not have been imposed but
for the failure to comply with certification, documentation,
information or other reporting
requirements concerning the nationality, residence, identity or
connection with the United
States or any political subdivision thereof of the holder or
beneficial owner of such Note or
Coupon, if, without regard to any tax treaty, such compliance is
required by a statute or by
regulation or administrative practice of the United States as a
precondition to relief or
exemption from such tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which is (i)
payable otherwise than by
deduction or withholding from payments on such Note or Coupon or
(ii) required to be
withheld by a Paying Agent from any such payment, if such payment
can be made without
such withholding by any other Paying Agent outside the United
States;
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(f) any tax, assessment or other governmental charge imposed on a
person holding, actually or
constructively, 10 per cent. or more of a total combined voting
power of all classes of stock of
the Issuer or that is a controlled foreign corporation related to
the Issuer through stock
ownership;
(g) a withholding or deduction imposed on a payment to an
individual and required to be made
pursuant to any European Union Directive on the taxation of
savings implementing the
conclusions of the ECOFIN Council meeting of 26th-27th November,
2000 or any law
implementing or complying with, or introduced in order to conform
to, such Directive; or
(h) a withholding or deduction which would not have been made had
the relevant Note or
Coupon been presented to a Paying Agent in another Member State
of the European Union;
nor will Additional Amounts be paid with respect to a payment on
a Note or Coupon to any person which is a fiduciary or partnership
or other than the sole beneficial owner of such Note or Coupon to
the extent a beneficiary or settlor with respect to such fiduciary
or a member of such partnership or a beneficial owner would not
have been entitled to the additional amounts had such beneficiary,
settlor, member or beneficial owner been the holder of such Note
or Coupon.
(2) Backup Withholding
If and so long as the certification, documentation, information or
other reporting requirements referred to in Condition 6(2)(b)
would be fully satisfied by payment of a backup withholding tax or
similar charge, the Issuer may elect, by so stating in the
Determination Notice, to have the provisions of this Condition
7(2) apply in lieu of the provisions of Condition 6(2)(b). In
such event, the Issuer will pay as additional interest such
amounts as may be necessary so that any net payment made
following the effective date of such requirements outside the
United States by the Issuer or any of its Paying Agents of
principal or interest due in respect of the Notes or Coupons of
which the beneficial owner is a United States Alien (but without
any requirement that the nationality, residence or identity,
other than status as a United States Alien, of such beneficial
owner be disclosed to the Issuer, any Paying Agent or any
governmental authority), after deduction or withholding for or on
account of such backup withholding tax or similar charge (other
than a backup withholding tax or similar charge which (a) is the
result of certification, documentation, information or other
reporting requirements described in the second parenthetical
clause of the first sentence of Condition 6(2)(b), (b) is imposed
as a result of the fact that the Issuer or any of the Paying
Agents has actual knowledge that the beneficial owner of such Note
or Coupon is within the category of persons described in
subparagraph (a) of Condition 7(1), or (c) is imposed as a result
of presentation of such Note or Coupon for payment more than 15
days after the Relevant Date), will not be less than the amount
provided for in the Notes or Coupons to be then due and payable.
If the Issuer elects to pay additional amounts pursuant to this
Condition 7(2), the Issuer shall have the right to redeem all
(but not some only) of the Notes subject to the provisions of
Condition 6(2)(b).
(3) Interpretation
In these Conditions:
(a) "Relevant Date" means the date on which the payment first
becomes due but, if the full
amount of the money payable has not been received by the Fiscal
Agent on or before the due
date, it means the date on which, the full amount of the money
having been so received,
notice to that effect shall have been duly given to the
Noteholders by the Issuer in accordance
with Condition 11;
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(b) "United States Alien" means any person who, for United
States federal income tax purposes,
is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a
foreign estate or trust, or a foreign partnership or other entity
one or more of the members of
which is, for United States federal income tax purposes, a
foreign corporation, a non-resident
alien individual or a non-resident alien fiduciary of a foreign
estate or trust; and
(c) "United States" means the United States of America or any
political subdivision or any
authority thereof or therein having power to tax or any other
jurisdiction or any political
subdivision or any authority thereof or therein having power to
tax to which the Issuer
becomes subject in respect of payments made by it of principal
and interest on the Notes and
Coupons.
(4) Additional Amounts
Any reference in these Conditions to any amounts in respect of
the Notes shall be deemed also to refer to any additional amounts
which may be payable under this Condition.
8. PRESCRIPTION
Notes and Coupons will become void unless presented for payment
within periods of 10 years (in the case of principal) and five
years (in the case of interest) from the Relevant Date in respect
of the Notes or, as the case may be, the Coupons, subject to the
provisions of Condition 5.
9. EVENTS OF DEFAULT
(1) Events of Default
The holder of any Note may give notice to the Issuer that the
Note is, and it shall accordingly
forthwith become, immediately due and repayable at its principal
amount, together with interest
accrued to the date of repayment, if any of the following events
("Events of Default") shall have
occurred and be continuing:
(a) if default is made in the payment of any principal or
interest due in respect of the Notes or
any of them and the default continues for a period of five days in
the case of payment of
interest; or
(b) if the Issuer fails to perform or observe any of its other
obligations under these Conditions
and (except in any case where the failure is incapable of remedy
when no continuation or
notice as is hereinafter mentioned will be required) the failure
continues for the period of 30
days next following the service by any Noteholder on the Issuer
of notice requiring the same
to be remedied; or
(c) if: (i) any Indebtedness for Borrowed Money (as defined below)
of the Issuer or any of its
Subsidiaries becomes due and repayable prematurely by reason of
an event of default
(however described); (ii) the Issuer or any of its Subsidiaries
fails to make any payment in
respect of any Indebtedness for Borrowed Money on the due date
for payment as extended
by any originally applicable grace period; (iii) any security
given by the Issuer or any of its
Subsidiaries for any Indebtedness for Borrowed Money becomes
enforceable; (iv) default is made by the Issuer or any of its
Subsidiaries in making any payment due under any guarantee and/or
indemnity given by it in relation to any Indebtedness for
Borrowed Money of any other person; or
(d) if the Issuer or any Material Subsidiary makes an assignment
for the benefit of creditors or is
generally not paying its debts as such debts become due; or
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(e) if any decree or order for relief in respect of the Issuer or
any Material Subsidiary is entered
under any bankruptcy, reorganisation, compromise, arrangement,
insolvency, readjustment
of debt, dissolution or liquidation or similar law, whether now
or hereafter in effect (herein
called the "Bankruptcy Law") of any jurisdiction; or
(f) if the Issuer or any Material Subsidiary petitions or applies
to any tribunal for, or consents
to, the appointment of, or taking possession by, a trustee,
receiver, custodian, liquidator or
similar official of the Issuer or any Material Subsidiary, or of
any substantial part of the
assets of the Issuer or any Material Subsidiary, or commences a
voluntary case under the
Bankruptcy Law of the United States or any proceedings (other
than proceedings for the
voluntary liquidation and dissolution of a Material Subsidiary
where all the surplus assets of
such Material Subsidiary attributable to the Issuer are
transferred to the Issuer or another
Subsidiary) relating to the Issuer or any Material Subsidiary
under the Bankruptcy Law of
any other jurisdiction; or
(g) if any petition or application of the type referred to in
paragraph (f) above is filed, or any
such proceedings are commenced, against the Issuer or any
Material Subsidiary and the
Issuer or such Material Subsidiary by any act indicates its
approval thereof, consent thereto
or acquiescence therein, or an order, judgment or decree is
entered appointing such trustee,
receiver, custodian, liquidator or similar official, or approving
the petition in any such
proceedings, and such order, judgment or decree remains unstayed
and in effect for more
than 30 days; or
(h) if any order, judgment or decree is entered in any
proceedings against the Issuer or any
Material Subsidiary decreeing the dissolution of the Issuer or
any Material Subsidiary and
such order, judgment or decree remains unstayed and in effect for
more than 60 days; or
(i) if any order, judgment or decree is entered in any
proceedings against the Issuer or any
Material Subsidiary decreeing a split-up of the Issuer or such
Material Subsidiary which
requires the divestiture of assets representing a substantial
part of the consolidated assets of
the Issuer and its Subsidiaries or which requires the divestiture
of assets which shall have
contributed a substantial part of Consolidated Net Income for any
of the three fiscal years
then most recently ended, and such order, judgment or decree
remains unstayed and in effect
for more than 60 days; or
(j) if one or more final judgments in an aggregate amount in
excess of U.S.$10,000,000 is
rendered against the Issuer or any Subsidiary and, within 60 days
after entry thereof, or
within 60 days after the expiration of any stay, such judgment is
not discharged; or
(k) if any event occurs which under the laws of any relevant
jurisdiction has an analogous effect
to any of the events referred to in paragraphs (d) to (j) above;
or
(l) if the Issuer or any of its Material Subsidiaries ceases or
threatens to cease to carry on the
whole or a substantial part of its business, save (i) in the case
of a Material Subsidiary, where
the business or a substantial part of it is transferred to the
Issuer or another Subsidiary, (ii) in
the case of a solvent winding up of a Material Subsidiary where
any surplus assets
attributable to the Issuer are distributed to the Issuer or one
or more other Subsidiaries or
(iii) for the purposes of any other reorganisation on terms
approved by an Extraordinary
Resolution of Noteholders; or
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(m) if the validity of the Notes is contested by the Issuer or
the Issuer denies any of its obligations
under the Notes or the Agency Agreement or it is or will become
unlawful under English or
United States law for the Issuer to perform or comply with any of
its obligations under or in
respect of the Notes or the Agency Agreement or any of such
obligations shall be or become
unenforceable or invalid.
(2) Interpretation
For the purposes of this Condition:
"Consolidated" shall mean, as applied to any financial or
accounting term, such term determined on a consolidated basis in
accordance with accounting principles generally accepted in the
United States (except as otherwise required herein) for the
Issuer and each Subsidiary which is a Consolidated Subsidiary of
the Issuer;
"Consolidated Net Income" shall mean the net income (or net
loss) of the Issuer and its Consolidated Subsidiaries for the
period in question (taken as a whole), as determined in
accordance with generally accepted accounting principles;
provided that there shall be excluded:
(a) the net income (or net loss) of any person accrued prior to
the date it becomes a Subsidiary or
is merged into or consolidated with the person whose net income
is being determined or a
subsidiary of such person; and
(b) the net income (or net loss) of any person (other than a
Subsidiary) in which the person
whose net income is being determined or any subsidiary of such
person has an ownership
interest, except to the extent that any such income has actually
been received by such person
in the form of cash dividends or similar distributions;
"Consolidated Net Worth" shall mean, as at any date of
determination, the sum of the capital stock (less treasury
stock), additional paid-in capital plus retained earnings (or
minus accumulated deficit), other comprehensive income or loss and
unearned ESOP compensation of the Issuer and its Consolidated
Subsidiaries on a consolidated basis;
"Consolidated Subsidiary" means, in the case of the Issuer at
any date, any Subsidiary or other entity the accounts of which
are Consolidated with those of the Issuer in the Consolidated
financial statements of the Issuer as of such date;
"Indebtedness for Borrowed Money" means any indebtedness
(whether being principal, premium, interest or other amounts) for
or in respect of any notes, bonds, debentures, debenture stock,
loan stock or other securities or any borrowed money or any
liability under or in respect of any acceptance or acceptance
credit where the principal amount of such indebtedness is
U.S.$10,000,000 or more (or its equivalent in any other currency
or currencies); and
"Material Subsidiary" shall mean any Subsidiary (i) which
provided 5 per cent. or more of Consolidated Net Income during
the fiscal year of the Issuer most recently ended at any time of
determination, (ii) whose tangible assets represented 5 per cent.
or more of the tangible assets of the Issuer and its Subsidiaries
on a consolidated basis as of the last day of the fiscal year of
the Issuer most recently ended at any time of determination, or
(iii) whose net worth represented 5 per cent. or more of
Consolidated Net Worth as of the last day of the fiscal year of
the Issuer most recently ended at any time of determination;
provided that, if at any time the aggregate amount of net income,
tangible assets or net worth of all Subsidiaries incorporated or
otherwise organised in the United States that are not Material
Subsidiaries exceeds 15 per cent. of
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Consolidated Net Income for any such fiscal year, 15 per cent. of
Consolidated tangible assets of the Issuer and its Subsidiaries
as of the end of such fiscal year or 15 per cent. of Consolidated
Net Worth as of the end of any such fiscal year (as applicable),
the Issuer shall designate as "Material Subsidiaries"
Subsidiaries incorporated or otherwise organised in the United
States sufficient to eliminate such excess, and such designated
Subsidiaries incorporated in the United States shall for all
purposes of these Conditions constitute Material Subsidiaries.
10. REPLACEMENT OF NOTES AND COUPONS
Should any Note or Coupon be lost, stolen, mutilated, defaced or
destroyed it may be replaced at the specified office of the Fiscal
Agent, upon payment by the claimant of the expenses incurred in
connection with the replacement and on such terms as to evidence
and indemnity as the Issuer may reasonably require. Mutilated or
defaced Notes or Coupons must be surrendered before replacements
will be issued.
11. NOTICES
All notices to the Noteholders will be valid if published in a
leading English language daily newspaper published in London or
such other English language daily newspaper with general
circulation in Europe as the Issuer may decide. It is expected
that publication will normally be made in the Financial Times.
The Issuer shall also ensure that notices are duly published in a
manner which complies with the rules and regulations of any stock
exchange or other relevant authority on which the Notes are for
the time being quoted or listed. Any such notice will be deemed
to have been given on the date of the first publication or, where
required to be published in more than one newspaper, on the date
of the first publication in all required newspapers.
12. MEETINGS OF NOTEHOLDERS AND MODIFICATION
(1) Provisions for Meetings
The Agency Agreement contains provisions for convening meetings
of the Noteholders to consider any matter affecting their
interests, including the modification by Extraordinary Resolution
of these Conditions or the provisions of the Agency Agreement.
The quorum at any meeting for passing an Extraordinary Resolution
will be one or more persons present holding or representing more
than 50 per cent. in principal amount of the Notes for the time
being outstanding, or at any adjourned meeting one or more
persons present whatever the principal amount of the Notes held
or represented by him or them, except that at any meeting the
business of which includes the modification of certain of these
Conditions the necessary quorum for passing an Extraordinary
Resolution will be one or more persons present holding or
representing not less than two-thirds, or at any adjourned
meeting not less than one-third, of the principal amount of the
Notes for the time being outstanding. An Extraordinary Resolution
passed at any meeting of the Noteholders will be binding on all
Noteholders, whether or not they are present at the meeting, and
on all Couponholders.
(2) Modification
The Fiscal Agent may agree, without the consent of the
Noteholders or Couponholders, to any modification of any of these
Conditions or any of the provisions of the Agency Agreement
either (i) for the purpose of curing any ambiguity or of curing,
correcting or supplementing any defective provision contained
herein or therein or (ii) in any manner which is not materially
prejudicial to the interests of the Noteholders. Any modification
shall be binding on the Noteholders and the Couponholders and,
unless the Fiscal Agent agrees otherwise, any modification shall
be notified by the Issuer to the Noteholders as soon as
practicable thereafter in accordance with Condition 11.
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13. FURTHER ISSUES
The Issuer may from time to time without the consent of the
Noteholders or Couponholders create and issue further notes,
having conditions the same as those of the Notes, or the same
except for the amount of the first payment of interest, which may
be consolidated and form a single series with the outstanding
Notes.
14. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(1) Governing Law
The Agency Agreement, the Notes and the Coupons are governed by,
and will be construed in
accordance with, English law.
(2) Jurisdiction of English Courts
The Issuer irrevocably agrees for the benefit of the Noteholders
and the Couponholders that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in
connection with the Notes or the Coupons and that accordingly any
suit, action or proceedings arising out of or in connection
therewith (together referred to as "Proceedings") may be
brought in the courts of England. The Issuer irrevocably and
unconditionally waives and agrees not to raise any objection
which it may have now or subsequently to the laying of the venue
of any Proceedings in the courts of England and any claim that
any Proceedings have been brought in an inconvenient forum and
further irrevocably and unconditionally agrees that a judgment in
any Proceedings brought in the courts of England shall be
conclusive and binding upon it and may be enforced in the courts
of any other jurisdiction. Nothing in this Condition shall limit
any right to take Proceedings against the Issuer in any other
court of competent jurisdiction, nor shall the taking of
Proceedings in one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction, whether concurrently or
not.
(3) Appointment of Process Agent
The Issuer hereby irrevocably and unconditionally appoints Denton
Wilde Sapte of 1 Fleet Place, London EC4M 7WS as its agent for
service of process in England in respect of any Proceedings and
undertakes that in the event of such agent ceasing so to act it
will appoint another person as its agent for that purpose.
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FISCAL AGENT
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
and/or any other or further Fiscal Agent or Paying Agents and/or specified
offices as may from time to time be duly appointed by the Issuer and notice
of which has been given to the Noteholders.
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SCHEDULE 3
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. As used in this schedule the following expressions shall have the
following meanings unless the context otherwise requires:
(a) "Voting Certificate" shall mean an English language certificate issued
by a Paying Agent and dated in which it is stated:
(i) that on the date of the Voting Certificate Notes (not being Notes in
respect of which a Block Voting Instruction has been issued
and is outstanding in respect of the meeting specified in the
Voting Certificate and any adjourned meeting) were deposited
with the Paying Agent or (to the satisfaction of the Paying
Agent) were held to its order or under its control and that
the Notes will not cease to be so deposited or held until the
first to occur of:
(A) the conclusion of the meeting specified in the Voting Certificate or, if
applicable, any adjourned meeting; and
(B) the surrender of the Voting Certificate to the Paying Agent who issued
the same; and
(ii) that the bearer of the Voting Certificate is entitled to attend and vote
at the meeting and any adjourned meeting in respect of the
Notes represented by the Voting Certificate;
(b) "Block Voting Instruction" shall mean an English language document
issued by a Paying Agent and dated in which:
(i) it is certified that Notes (not being Notes in respect of which a Voting
Certificate has been issued and is outstanding in respect of
the meeting specified in the Block Voting Instruction and any
adjourned meeting) have been deposited with the Paying Agent
or (to the satisfaction of the Paying Agent) were held to its
order or under its control and that the Notes will not cease
to be so deposited or held until the first to occur of:
(A) the conclusion of the meeting specified in the document or, if
applicable, any adjourned meeting; and
(B) the surrender to the Paying Agent not less than 48 hours before the time
for which the meeting or any adjourned meeting is
convened of the receipt issued by the Paying Agent in
respect of each deposited Note which is to be released or
(as the case may require) the Note ceasing with the
agreement of the Paying Agent to be held to its order or
under its control and the giving of notice by the Paying
Agent to the Issuer under paragraph 17 of the necessary
amendment to the Block Voting Instruction;
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(ii) it is certified that each holder of the Notes has instructed the Paying
Agent that the vote(s) attributable to the Notes so deposited
or held should be cast in a particular way in relation to the
resolution to be put to the meeting or any adjourned meeting
and that all the instructions are, during the period
commencing 48 hours before the time for which the meeting or
any adjourned meeting is convened and ending at the conclusion
or adjournment, neither revocable nor capable of amendment;
(iii) the total number, total principal amount and the serial numbers (if
available) of the Notes so deposited or held are listed
distinguishing, with regard to each resolution, between those
in respect of which instructions have been correctly given
that the attributable votes should be cast in favour of the
resolution and those in respect of which instructions have
been so given that the attributable votes should be cast
against the resolution; and
(iv) one or more persons named in the Block Voting Instruction (a "proxy") is
or are authorised and instructed by the Paying Agent to cast
the votes attributable to the Notes so listed in accordance
with the instructions referred to in subparagraph (iii) as set
out in the Block Voting Instruction.
The holder of any Voting Certificate or the proxies named in any Block
Voting Instruction shall for all purposes in connection with the
relevant meeting or adjourned meeting of Noteholders be deemed to be the
holder of the Notes to which the Voting Certificate or Block Voting
Instruction relates and the Paying Agent with which the Notes have been
deposited or the person holding the same to the order or under the
control of the Paying Agent shall be deemed for such purpose not to be
the holder of those Notes.
2. The Issuer may at any time and the Issuer shall upon a requisition in
writing signed by the holders of not less than one-tenth in principal
amount of the Notes for the time being outstanding convene a meeting of
the Noteholders and if the Issuer makes default for a period of seven
days in convening a meeting the same may be convened by the
requisitionists. Every meeting shall be held at such place as the Fiscal
Agent may approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place,
day and hour of meeting shall be given to the Noteholders before any
meeting of the Noteholders in the manner provided by Condition 11. The
notice shall state generally the nature of the business to be transacted
at the meeting but (except for an Extraordinary Resolution) it shall not
be necessary to specify in the notice the terms of any resolution to be
proposed. Such notice shall include a statement to the effect that Notes
may be deposited with Paying Agents for the purpose of obtaining Voting
Certificates or appointing proxies. A copy of the notice shall be sent
by post to the Issuer.
4. Some person (who may but need not be a Noteholder) nominated in writing
by the Issuer shall be entitled to take the chair at every meeting but
if no nomination is made or if at any meeting the person nominated shall
not be present within fifteen minutes after the time appointed for
holding the meeting the Noteholders present shall choose one of their
number to be Chairman.
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5. At any meeting one or more persons present holding Notes or Voting
Certificates or being proxies and holding or representing in the
aggregate not less than one-fifth of the principal amount of the Notes
for the time being outstanding shall (except for the purpose of passing
an Extraordinary Resolution) form a quorum for the transaction of
business and no business (other than the choosing of a Chairman) shall
be transacted at any meeting unless the requisite quorum be present at
the commencement of business. The quorum at any meeting for passing an
Extraordinary Resolution shall (subject as provided below) be one or
more persons present holding Notes or Voting Certificates or being
proxies and holding or representing in the aggregate a clear majority in
principal amount of the Notes for the time being outstanding, provided
that at any meeting the business of which includes any of the following
matters (each of which shall only be capable of being effected after
having been approved by Extraordinary Resolution) namely:
(a) modification of the date fixed for final maturity of the Notes or
reduction or cancellation of the amount of principal payable;
(b) reduction or cancellation of the amount payable or modification of
the date of payment in respect of any interest;
(c) alteration of the currency in which payments under the Notes and
Coupons are to be made;
(d) alteration of the majority required to pass an Extraordinary
Resolution;
(e) the sanctioning of any scheme or proposal as is described in
paragraph 18(f);
(f) alteration of this proviso or the proviso to paragraph 6;
the quorum shall be one or more persons present holding Notes or Voting
Certificates or being proxies and holding or representing in the
aggregate not less than two-thirds of the principal amount of the Notes
for the time being outstanding.
6. If within fifteen minutes after the time appointed for any meeting a
quorum is not present the meeting shall if convened upon the requisition
of Noteholders be dissolved. In any other case it shall stand adjourned
to the same day in the next week (or if the day is a public holiday the
next succeeding business day) at the same time and place (except in the
case of a meeting at which an Extraordinary Resolution is to be proposed
in which case it shall stand adjourned for the period being not less
than 14 days nor more than 42 days, and at such place as may be
appointed by the Chairman and approved by the Fiscal Agent) and at the
adjourned meeting one or more persons present holding Notes or Voting
Certificates or being proxies (whatever the principal amount of the
Notes so held or represented by them) shall (subject as provided below)
form a quorum and shall (subject as provided below) have power to pass
any Extraordinary or other resolution and to decide upon all matters
which could properly have been dealt with at the meeting from which the
adjournment took place had the requisite
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quorum been present, provided that at any adjourned meeting the business
of which includes any of the matters specified in the proviso to
paragraph 5, the quorum shall be one or more persons present holding
Notes or Voting Certificates or being proxies and holding or
representing in the aggregate not less than one-third of the principal
amount of the Notes for the time being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3 and
the notice shall (except in cases where the proviso to paragraph 6 shall
apply when it shall state the relevant quorum) state that the persons
present holding Notes or Voting Certificates or being proxies at the
adjourned meeting whatever the principal amount of the Notes held or
represented by them will form a quorum. Subject as provided above it
shall not be necessary to give any notice of an adjourned meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
Chairman shall both on a show of hands and on a poll have a casting vote
in addition to any votes to which he may be entitled as a Noteholder or
as a holder of a Voting Certificate or as a proxy.
9. At any meeting unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the Issuer or
by one or more persons present holding Notes or Voting Certificates or
being proxies and holding or representing in the aggregate not less than
one-fiftieth part of the principal amount of the Notes then outstanding
a declaration by the Chairman that a resolution has been carried or
carried by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact without proof of the
number or proportion of the votes recorded in favour of or against the
resolution.
10. Subject to paragraph 12, if at any meeting a poll is demanded it shall
be taken in such manner and, subject as provided below, either at once
or after an adjournment, as the Chairman may direct and the result of
the poll shall be deemed to be the resolution of the meeting at which
the poll was demanded as at the date of the taking of the poll. The
demand for a poll shall not prevent the continuance of the meeting for
the transaction of any business other than the motion on which the poll
has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any
meeting adjourn the same from time to time and from place to place but
no business shall be transacted at any adjourned meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any meeting on the election of a Chairman or on any
question of adjournment shall be taken at the meeting without
adjournment.
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13. Any director or officer of the Issuer and the lawyers and financial
advisers of either of them may attend and speak at any meeting. Save as
provided above but without prejudice to the proviso to the definition of
"outstanding" in clause 1 of the Agency Agreement no person shall be
entitled to attend and speak nor shall any person be entitled to vote at
any meeting of the Noteholders or join with others in requesting the
convening of a meeting unless he either produces the Note of which he is
the holder or a Voting Certificate or is a proxy. Neither the Issuer nor
any of its subsidiaries shall be entitled to vote at any meeting in
respect of Notes held by it for the benefit of any such company. Nothing
contained in this paragraph shall prevent any of the proxies named in
any Block Voting Instruction from being a director or officer of or
otherwise connected with the Issuer.
14. Subject as provided in paragraph 13 at any meeting:
(a) on a show of hands every person who is present in person and produces a
Note or Voting Certificate or is a proxy shall have one vote; and
(b) on a poll every person who is so present shall have one vote in respect
of each (euro)1.00 in principal amount of the Notes so produced
or represented by the Voting Certificate so produced or in respect
of which he is a proxy or in respect of which he is the Noteholder.
Without prejudice to the obligations of the proxies named in any Block
Voting Instruction any person entitled to more than one vote need not
use all his votes or cast all the votes to which he is entitled in the
same way.
15. The proxies named in any Block Voting Instruction need not be
Noteholders.
16. Each Block Voting Instruction together (if so requested by the Issuer)
with reasonable proof satisfactory to the Issuer of its due execution on
behalf of the relevant Paying Agent shall be deposited at such place as
the Fiscal Agent shall approve not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at which the
proxies named in the Block Voting Instruction propose to vote and in
default the Block Voting Instruction shall not be treated as valid
unless the Chairman of the meeting decides otherwise before the meeting
or adjourned meeting proceeds to business. A notarially certified copy
of each Block Voting Instruction shall (if so requested by the Issuer)
be deposited with the Fiscal Agent before the commencement of the
meeting or adjourned meeting but the Fiscal Agent shall not be obliged
to investigate or be concerned with the validity of or the authority of
the proxies named in any Block Voting Instruction.
17. Any vote given in accordance with the terms of a Block Voting
Instruction shall be valid notwithstanding the previous revocation or
amendment of the Block Voting Instruction or of any of the Noteholders'
instructions pursuant to which it was executed, provided that no
intimation in writing of the revocation or amendment shall have been
received from the relevant Paying Agent by the Issuer at its registered
office (or such other place as may have been approved by the Fiscal
Agent for the purpose) by the time being 24 hours before the time
appointed for holding the meeting or adjourned meeting at which the
Block Voting Instruction is to be used.
18.
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A meeting of the Noteholders shall in addition to the powers provided above
have the following powers exercisable by Extraordinary Resolution
(subject to the provisions relating to quorum contained in paragraphs 5
and 6) only namely:
(a) power to sanction any compromise or arrangement proposed to be made
between the Issuer and the Noteholders and Couponholders or any of
them;
(b) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Noteholders and
Couponholders against the Issuer or against any of its property
whether the rights shall arise hereunder or otherwise;
(c) power to assent to any modification of the provisions contained in the
Conditions, the Notes or the Coupons which shall be proposed by the
Issuer or any Noteholder;
(d) power to give any authority or sanction which under the Notes or
hereunder is required to be given by Extraordinary Resolution;
(e) power to appoint any persons (whether Noteholders or not) as a committee
to represent the interests of the Noteholders and to confer upon
the committee any powers or discretions which the Noteholders could
themselves exercise by Extraordinary Resolution;
(f) power to sanction any scheme or proposal for the exchange or sale of the
Notes for or the conversion of the Notes into or the cancellation
of the Notes in consideration of shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
securities of the Issuer or any other company formed or to be
formed, or for or into or in consideration of cash, or partly for
or into or in consideration of the shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
securities as provided above and partly for or into or in
consideration of cash; and
(g) power to approve the substitution of any entity in place of the Issuer
(or any previous substitute) as the principal debtor in respect of
the Notes and the Coupons.
19. Any resolution passed at a meeting of the Noteholders duly convened and
held hereunder shall be binding upon all the Noteholders whether present
or not present at the meeting and whether or not voting and upon all
Couponholders and each of them shall be bound to give effect to the
resolution accordingly and the passing of any resolution shall be
conclusive evidence that the circumstances justify the passing of the
resolution. Notice of any resolution duly passed by the Noteholders
shall be published under Condition 11 by the Issuer within 14 days of
the passing of the resolution, provided that the non-publication of the
notice shall not invalidate the resolution.
20. The expression "Extraordinary Resolution" when used in this Schedule and
in the Conditions means a resolution passed at a meeting of the
Noteholders duly convened and held in accordance with the provisions
contained in this Agreement by a majority consisting of not less than
three-fourths of the persons voting thereat upon a show of hands or if a
poll shall be duly demanded then by a majority consisting of not less
than three-fourths of the votes given on the poll.
21.
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Minutes of all resolutions and proceedings at every meeting shall be made and
duly entered in books to be from time to time provided for that purpose
by the Issuer and any Minutes purporting to be signed by the Chairman of
the meeting at which the resolutions were passed or proceedings had
shall be conclusive evidence of the matters contained in the Minutes and
until the contrary is proved every meeting in respect of the proceedings
of which Minutes have been made shall be deemed to have been duly held
and convened and all resolutions passed or proceedings had to have been
duly passed or had.
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SIGNATORIES
This Agreement has been entered into on the date stated at the beginning of
this Agreement.
The Issuer
DENTSPLY INTERNATIONAL INC.
By: JOHN C. MILES II
The Fiscal Agent
CITIBANK, N.A.
By: MARNE LIDSTER
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1 To be dated no earlier than the fifteenth day before the date to which
certification relates, namely (a) the payment date or (b) the date set for
the exchange of the temporary Global Note for an interest in the permanent
Global Note or definitive Notes, as the case may be.