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UK/910347/07 - 1 - 231722/70-40067423
26 OCTOBER 2006
ENTSPLY INTERNATIONAL INC.
as Issuer
CITIBANK INTERNATIONAL plc
as Arranger
- and -
CITIBANK INTERNATIONAL plc
as Dealer
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DEALER AGREEMENT
relating to a U.S. $250,000,000
EURO-COMMERCIAL PAPER PROGRAMME
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CONTENTS
Clause Page
1. Interpretation...............................................1
2. Issue.............................................. ..........6
3. Representations And Warranties................................8
4. Covenants And Agreements.....................................11
5. Conditions Precedent.........................................15
6. Termination And Appointment..................................15
7. Notices......................................................16
8. Assignment...................................................17
9. Third Party Rights...........................................18
10. Law And Jurisdiction.........................................18
11. Counterparts.................................................19
Schedule 1 CONDITION PRECEDENT DOCUMENTS..................20
Schedule 2 SELLING RESTRICTIONS...........................21
Schedule 3 PROGRAMME SUMMARY..............................24
Schedule 4 INCREASE OF MAXIMUM AMOUNT.....................26
Schedule 5 APPOINTMENT OF NEW DEALER......................28
Schedule 6 FORM OF CALCULATION AGENCY AGREEMENT...........30
THIS AGREEMENT is made on 26 October 2006
BETWEEN
(1).....DENTSPLY INTERNATIONAL INC. (the "Issuer");
(2) CITIBANK INTERNATIONAL plc (the "Arranger"); and
(3) CITIBANK INTERNATIONAL plc (the "Dealer").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
"Agency Agreement" means the note agency agreement, dated the date
hereof, between the Issuer and the Issue Agent and the Paying Agent,
providing for the issue of and payment on the Notes, as such agreement
may be amended or supplemented from time to time;
"Agreements" means this Agreement (as amended or supplemented from time
to time), any agreement reached pursuant to Clause 2.1, the Deed of
Covenant and the Agency Agreement;
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Dealer(s)" means the institution or institutions specified as a Dealer
in the Programme Summary together with any additional institution or
institutions appointed pursuant to Clause 6.2 but excluding any
institution or institutions whose appointment has been terminated
pursuant to Clause 6.1;
"Deed of Covenant" means the deed of covenant, dated the date hereof,
executed by the Issuer in respect of Global Notes issued pursuant to the
Agency Agreement, as such deed may be amended or supplemented from time
to time;
"Definitive Note" means a security printed Note in definitive form;
"Disclosure Documents" means, at any particular date, (a) the
Information Memorandum, (b) the most recently published audited
consolidated financial statements of the Issuer filed with the
Securities and Exchange Commission and any subsequent interim financial
statements filed with the Securities and Exchange Commission, and (c)
any other document delivered by the Issuer to the Dealer(s) which the
Issuer has expressly authorised to be distributed;
"Dollars" and "U.S.$" denote the lawful currency of the United States of
America; and "Dollar Note" means a Note denominated in Dollars;
"Dollar Equivalent" means, on any day:
(a) in relation to any Dollar Note, the nominal amount of such
Note; and
(b) in relation to any Note denominated or to be denominated in
any other currency, the amount in Dollars which would be
required to purchase the nominal amount of such Note as
expressed in such other currency at the spot rate of exchange
for the purchase of such other currency with Dollars quoted by
the Issue Agent at or about 11.00 a.m. (London time) on such
day;
"Euro" denotes the single currency of those member states of the
European Union participating in European Monetary Union from time to
time; and "Euro Note" means a Note denominated in Euro;
"Euroclear" means Euroclear Bank S.A./N.V. as operator of the Euroclear
clearing system;
"Euroclear France" means Euroclear France S.A. as operator of the
Euroclear France clearing
system;
"FSMA" means the Financial Services and Markets Act 2000;
"Global Note" means a Note in global form, representing an issue of
commercial paper notes of a like maturity which may be issued by the
Issuer from time to time pursuant to the Agency Agreement;
"Index Linked Note" means a Note, the redemption or coupon amount of
which is not fixed at the time of issue, but which is to be calculated
in accordance with such formula or other arrangement as is agreed
between the Issuer and the relevant Dealer at the time of reaching
agreement under Clause 2.1;
"Information Memorandum" means the most recent information memorandum,
as the same may be amended or supplemented from time to time, containing
information about the Issuer and the Programme, the text of which has
been prepared by or on behalf of the Issuer for use by the Dealer(s) in
connection with the transactions contemplated by this Agreement;
"Issue Agent" means Citibank, N.A. and any successor issue agent
appointed in accordance with
the Agency Agreement;
"Japanese Yen" and "JPY" denote the lawful currency of Japan; and "Yen
Note" means a Note denominated in Japanese Yen;
"Note" means a commercial paper note of the Issuer purchased or to be
purchased by a Dealer under this Agreement, in bearer global or
definitive form, substantially in the relevant form scheduled to the
Agency Agreement or such other form(s) as may be agreed from time to
time between the Issuer and the Issue Agent and, unless the context
otherwise requires, includes the commercial paper notes represented by
the Global Notes;
"Principal Paying Agent" means Citibank, N.A. and any successor
principal paying agent
appointed in accordance with the Agency Agreement;
"Programme" means the Euro-commercial paper programme established by the
Agreements;
"Programme Summary" means the summary of the particulars of the
Programme as set out in Schedule 3, as such summary may be amended or
superseded from time to time;
"Rating Agencies" means Standard & Poor's Rating Services, a
division of the McGraw Hill
Companies Inc., or Moody's Investors Services Inc.;
"relevant jurisdiction" means any one or more of the United Kingdom, the
jurisdiction of incorporation of the Issuer and any jurisdiction from or
through which any payment under or in respect of any Note or any
Agreement may be made;
"Relevant Party" means the Arranger, each Dealer, each of their
respective affiliates and each person who controls them (within the
meaning of section 15 of the Securities Act or section 20 of the United
States Securities Exchange Act of 1934, as amended), together with each
of their respective directors, officers, employees and agents;
"Securities Act" means the United States Securities Act of 1933;
"Sterling" and "GBP" denote the lawful currency of the United Kingdom;
and "Sterling Note" means a Note denominated in Sterling;
"Subsidiary" means, in respect of any person (the "first person") at any
particular time, any other person (the "second person"):
(a) an entity of which a person has direct or indirect control or
owns directly or indirectly more than 50 per cent. of the
voting capital or similar right of ownership and "control" for
this purpose means the power to direct the management and the
policies of the entity whether through the ownership of voting
capital, by contract or otherwise; or
(b) an entity whose financial statements are, in accordance with
applicable law and generally accepted accounting principles,
consolidated with those of another person.
"Swiss francs" and "CHF" denote the lawful currency of Switzerland; and
"Swiss franc Note" means a Note denominated in Swiss francs; and
1.2 Programme Summary
Terms not expressly defined herein shall have the meanings set out in
the Programme Summary.
1.3 Legislation
Any reference in this Agreement to any legislation (whether primary
legislation or regulations or other subsidiary legislation made pursuant
to primary legislation) shall be construed as a reference to such
legislation as the same may have been, or may from time to time be,
amended or re-enacted.
1.4 Clauses and Schedules
Any reference in this Agreement to a Clause, sub clause or a Schedule
is, unless otherwise stated, to a clause or sub clause hereof or a
schedule hereto.
1.5 Headings
Headings and sub-headings are for ease of reference only and shall not
affect the construction of this Agreement.
2. ISSUE
2.1 Basis of agreements to issue; uncommitted facility
Subject to the terms hereof, the Issuer may issue and sell Notes to the
Dealer(s) from time to time at such prices and upon such terms as the
Issuer and the relevant Dealer may agree, provided that the Issuer has,
and shall have, no obligation to sell Notes to the Dealer(s), except as
agreed, and each Dealer has, and shall have, no obligation to purchase
Notes from the Issuer, except as agreed. The Issuer acknowledges that
the Dealer(s) may resell Notes purchased by such Dealer(s). The tenor of
each Note shall not be less than the Minimum Term nor greater than the
Maximum Term specified in the Programme Summary, calculated from the
date of issue of such Note to the maturity date thereof. Global Notes
and Definitive Notes shall be issued in the Denomination(s) specified in
the Programme Summary. Each issue of Notes having the same issue date,
maturity date, currency of denomination, yield and redemption basis will
be represented by a Global Note or by Definitive Notes having the
aggregate nominal amount of such issue as may be agreed between the
Issuer and the relevant Dealer.
2.2 Procedures
If the Issuer and any Dealer shall agree on the terms of the purchase of
any Note by such Dealer (including agreement with respect to the issue
date, maturity date, currency, denomination, yield, redemption basis,
aggregate nominal amount and purchase price), then:
2.2.1 Instruction to Issue Agent: the Issuer shall instruct the Issue
Agent to issue such Note and
deliver it in accordance with the terms of the Agency
greement;
2.2.2 Payment of purchase price: the relevant Dealer shall pay or
arrange for payment of the
purchase price of such Note on the date of issue:
(a) Dollar Note: in the case of a Dollar Note, by transfer
of funds settled through the New York Clearing House
Interbank Payments System (or such other same day value
funds as at the time shall be customary for the
settlement in New York City of international banking
transactions denominated in Dollars) to such account of
the Issue Agent in New York City denominated in Dollars
as the Issue Agent shall have specified for this
purpose; or
(b) Euro Note: in the case of a Euro Note, by transfer of
same-day funds settled through the Trans-European
Automated Real-Time Gross Settlement Express Transfer
(TARGET) System to such account of the Issue Agent
outside the United Kingdom denominated in Euro as the
Issue Agent shall have specified for this purpose; or
(c) Sterling Notes: in the case of a Sterling Note, by
transfer of same-day funds to the Sterling account in
London as the Issue Agent shall from time to time have
specified for this purpose; or
(d) Other Notes: in all other cases, by transfer of freely
transferable and immediately available funds in the
relevant currency to such account of the Issue Agent at
such bank in the principal domestic financial centre for
such currency as the Issue Agent shall have specified
for this purpose; and
2.2.3 Delivery Instructions: the relevant Dealer shall notify the Issue
Agent and the Issuer of the payment and delivery instructions applicable to such
Note or Notes by fax or through any applicable Citibank software system, such
notification to be received in sufficient time and in any event no later than
(i) 12 noon (London time) on the proposed issue date (in the case of Sterling
Definitive Notes); or (ii) 12 noon (Paris time) on the proposed issue date (in
the case of Notes to be cleared through Euroclear France) or (iii) in any other
case, 3.00 p.m. (London time) two Business Days prior to the proposed issue date
(or such later time or date as may be agreed between the Issue Agent and the
relevant Dealer) to enable the Issue Agent to deliver such Note or Notes as
contemplated in the Agency Agreement (or, in the case of Sterling Definitive
Notes, make the same available for collection) on its issue date.
2.3 Failure of agreed issuance
If for any reason (including, without limitation, the failure of the
relevant trade) a Note agreed to be purchased pursuant to Clause 2.1 is
not to be issued, each of the Issuer and the relevant Dealer shall
immediately notify the Issue Agent thereof.
2.4 Issuance currencies
The parties acknowledge that Notes issued under the Programme may be
denominated in Dollars or, subject as provided below, in any other
currency. Any agreement reached pursuant to Clause 2.1 to sell and
purchase a Note denominated in a currency other than Dollars shall be
conditional upon:
2.4.1 Compliance: it being lawful and in compliance with all
requirements of any relevant central bank and any other
relevant fiscal, monetary, regulatory or other authority, for
deposits to be made in such currency and for such Note to be
issued, offered for sale, sold and delivered;
2.4.2 Convertibility: such other currency being freely transferable and
freely convertible into
Dollars;
2.4.3 Consent: the consent of the Issue Agent to that currency having been
given; and
2.4.4 Amendments: any appropriate amendments which the relevant
Dealer, the Issuer or the Issue Agent shall require having
been made to this Agreement and/or the Agency Agreement.
2.5 Increase of Maximum Amount
The Issuer may increase the Maximum Amount by giving at least ten days'
notice by letter, substantially in the form set out in Schedule 4, to
each of the Dealer(s), the Issue Agent and the Paying Agent. Such
increase will not take effect until the Dealer(s) have received from the
Issuer the documents listed in such letter of Schedule 1 (if required by
the Dealer(s)), in each case in form and substance acceptable to each
Dealer.
2.6 Calculation Agent
If Index Linked Notes are to be issued, the Issuer will appoint either
the relevant Dealer or the Principal Paying Agent (subject to the
consent of the relevant Dealer or the Principal Paying Agent thereto) or
some other person (subject to the consent of the relevant Dealer and the
Principal Paying Agent to such person's appointment) to be the
calculation agent in respect of such Index Linked Notes and the
following provisions shall apply:
2.6.1 Dealer: if a Dealer is to be the calculation agent, its
appointment as such shall be on the terms of the form of
agreement set out in Schedule 6, and each Dealer will be
deemed to have entered into an agreement in such form for a
particular calculation if it is named as calculation agent in
the redemption calculation attached to or endorsed on the
relevant Note;
2.6.2 Principal Paying Agent: if the Principal Paying Agent is to be the
calculation agent, its
appointment as such shall be on the terms set out in the
Agency Agreement;
2.6.3 Other Calculation Agent: if the person nominated by a Dealer
or by the Principal Paying Agent as calculation agent is not a
Dealer, that person shall execute (if it has not already done
so) an agreement substantially in the form of the agreement
set out in Schedule 6 and the appointment of that person shall
be on the terms of that agreement.
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and warranties
The Issuer represents and warrants to each Dealer at the date of this
Agreement, each date upon which the Maximum Amount is increased, each
date upon which an agreement for the sale of Notes is made and each date
upon which Notes are, or are to be, issued that:
3.1.1 Authorisation; valid, binding and enforceable: each of:
(a) the establishment of the Programme and the execution,
delivery and performance by the Issuer of the Agreements
and the Notes;
(b) the entering into and performance by the Issuer of any
agreement for the sale of Notes reached pursuant to
Clause 2.1; and
(c) the issue and sale of the Notes by the Issuer under the
Agreements,
has been duly authorised by all necessary action and the same
constitute, or, in the case of Notes, will, when issued in
accordance with the Agency Agreement, constitute, valid and
binding obligations of the Issuer enforceable against it in
accordance with their respective terms;
3.1.2 Status: the obligations of the Issuer under each of the
Agreements and the Notes will rank (other than in the case of
obligations preferred by mandatory provisions of law) at least
pari passu with all other present and future unsecured
indebtedness of the Issuer or guaranteed by the Issuer;
3.1.3 Incorporation, capacity: the Issuer is duly incorporated and
validly existing under the laws of its jurisdiction of
incorporation and:
(a) the establishment of the Programme, the execution,
delivery and performance by the Issuer of the Agreements
and the Notes;
(b) the entering into and performance by the Issuer of any
agreement for the sale of Notes reached pursuant to
Clause 2.1; and
(c) the issue and sale of the Notes by the Issuer under the
Agreements,
will not infringe any of the provisions of the Issuer's
constituting documents and will not contravene any then
existing law, regulation, order or judgement to which the
Issuer or any of its assets is subject nor result in the
breach of any term of, or cause a default under, any
instrument to which the Issuer is a party or by which it or
any of its assets may be bound;
3.1.4 Approvals: all consents, authorisations, licences or approvals
of and registrations and filings with any governmental or
regulatory authority required in connection with the issue by
the Issuer of Notes under the Agreements and the performance
of the Issuer's obligations under the Agreements and the Notes
have been obtained and are in full force and effect, and
copies thereof have been supplied to the Dealer(s);
3.1.5 Disclosure: in the context of this Agreement and the
transactions contemplated hereby, the information contained or
incorporated by reference in the Disclosure Documents is true
and accurate and not misleading, in any material respect and
there are no other facts the omission of which makes the
Disclosure Documents as a whole or any such information
contained or incorporated by reference therein misleading in
any material respect;
3.1.6 Financial Statements: the audited financial statements and any
interim financial statements (audited or unaudited) filed with the Securities
and Exchange Commission for the Issuer published subsequently thereto and
incorporated by reference in the Information Memorandum as of the respective
dates of such statements and for the periods they cover or to which they relate
and have been prepared in accordance with the relevant laws of the United States
of America and with generally accepted accounting principles in the United
States of America applied on a consistent basis throughout the periods involved
(unless and to the extent otherwise stated therein);
3.1.7 No material adverse change, No litigation: since the date of
the most recent audited financial statements supplied to the
Dealer(s) and, in relation to any date on which this warranty
is made after the date hereof, save as otherwise disclosed by
any Disclosure Document subsequently delivered by the Issuer
to the Dealer(s):
(a) there has been no adverse change in the business or
financial condition of the Issuer or its Subsidiaries,
holding companies or affiliates; and
(b) there is no litigation, arbitration or governmental
proceeding pending or, to the knowledge of the Issuer,
threatened against or affecting the Issuer or its
subsidiaries, holding companies or affiliates,
which in any case could reasonably be expected to be
material to the issue on a
consolidated basis;
3.1.8 No default: the Issuer is not in default in respect of any indebtedness
for borrowed money;
3.1.9 No ratings downgrade: there has been no downgrading, nor any
notice to the Issuer of any
intended downgrading, in the rating accorded to the Issuer
or any security of the
Issuer by the Rating Agencies;
3.1.10 Taxation: the Issuer is not required by any then existing law
or regulation nor any relevant taxing authority in any
relevant jurisdiction to make any deduction or withholding
from any payment due under the Notes, the Agency Agreement or
the Deed of Covenant for or on account of any income,
registration, transfer or turnover taxes, customs or other
duties or taxes of any kind;
3.1.11 Maximum Amount not exceeded: the outstanding principal amount
of all Notes on the date of issue of any Note does not and
will not exceed the Maximum Amount set out in the Programme
Summary (as increased from time to time pursuant to Clause
2.5) and for this purpose the nominal amount of any Note
denominated in any currency other than Dollars shall be taken
as the Dollar Equivalent of such nominal amount as at the date
of the agreement for the issue of such Note; and
3.1.12 Investment Company: the Issuer is not an investment company as
defined in the United States
Investment Company Act of 1940.
3.2 Notice of inaccuracy
If, prior to the time a Note is issued and delivered to or for the
account of the relevant Dealer, an event occurs which would render any
of the representations and warranties set out in Clause 3.1 immediately,
or with the lapse of time, untrue or incorrect, the Issuer will inform
the relevant Dealer in writing as soon as practicable of the occurrence
of such event. In either case, the relevant Dealer shall inform the
Issuer in writing without any undue delay whether it wishes to continue
or discontinue the issuance and delivery of the respective Notes.
4. COVENANTS AND AGREEMENTS
4.1 Issuer
The Issuer covenants and agrees that:
4.1.1 Delivery of published information: whenever the Issuer shall
make a public filing with the Securities and Exchange
Commission, the Issuer shall notify the Dealer(s) shall make a
reasonable number of copies of such information available to
the Dealer(s) upon request to permit distribution to investors
and prospective investors and shall take such action as may be
necessary to ensure that the representation and warranty
contained in sub clause 3.1.5 is true and accurate on the
dates contemplated by such sub clause;
4.1.2 Authorisation information: Whenever the Issuer is required to
obtain or effect any consent, authorisation, licence or
approval in order to comply with the representation and
warranty contained in Clause 3.1.4, the Issuer shall:
(a) notify the Dealer(s) as to the nature of such
authorisation; and
(b) upon request by the Dealer(s), make a reasonable number
of copies of such authorisation available to the
Dealer(s).
4.1.3 Ratings: The Issuer shall promptly notify the Dealer(s) of any
change in the rating given by the Rating Agencies or such
other rating agency as notified to the Dealer(s) for any of
the Notes to be issued under the Programme by it or upon it
becoming aware that such rating has been put on a
"Creditwatch" list or other similar publication of formal
review (including a notice of change of outlook) by either of
the Rating Agencies or any other relevant rating agency.
4.1.4 Indemnity: the Issuer shall indemnify and hold harmless on
demand each Dealer against any claim, demand, action,
liability, damages, cost, loss or expense (including, without
limitation, legal fees and any applicable value added tax)
which it may incur arising out of or based upon:
(a) the Issuer's failure to make due payment under the Notes
or the Deed of Covenant; or
(b) Notes not being issued for any reason (other than as a
result of the failure of any Dealer to pay or an
exception provided for in this Agreement) after an
agreement for the sale of such Notes has been made; or
(c) any breach or alleged breach of the representations,
warranties, covenants or agreements made by the Issuer
in this Agreement; or
(d) any untrue statement or alleged untrue statement of any
material fact contained in the Disclosure Documents or
the omission or alleged omission to state therein a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading;
4.1.5 In case any allegation as described in sub-clause 4.1.4 above
is made or any action is brought against any Relevant Party in
respect of which recovery may be sought from the Issuer, under
sub-clause 4.1.4, the Relevant Party shall promptly notify the
Issuer (although failure to do so will not relieve the Issuer
from any liability under this Agreement). If any such
allegation is made, the parties agree to consult in good faith
with respect to the nature of the allegation. Subject to
sub-clause 4.1.6 below, the Issuer may participate at its own
expense in the defence of any action.
4.1.6 If it so elects within a reasonable time after receipt of the
notice referred to in sub-clause 4.1.5 above, the Issuer may
assume the defence of the action with legal advisers chosen by
it and approved by the Relevant Party (such approval not to be
unreasonably withheld or delayed). Notwithstanding such
election a Relevant Party may employ separate legal advisers
reasonably acceptable to the Issuer and the Issuer shall bear
the reasonable fees and expenses of such separate legal
advisers if:
(a) the use of the legal advisers chosen by the Issuer to
represent the Relevant Party would present such legal
advisers with a conflict of interest;
(b) the actual or potential defendants in, or targets of,
any such action include both the Relevant Party and the
Issuer and the Relevant Party concludes that there may
be legal defences available to it and/or other Relevant
Parties which are different from or additional to those
available to the Issuer;
(c) the Issuer has not employed legal advisers reasonably
satisfactory to the Relevant Party to represent the
Relevant Party within a reasonable time after notice of
the institution of such action; or
(d) the Issuer authorises the Relevant Party to employ
separate legal advisers at the expense of the Issuer.
4.1.7 If the Issuer assumes the defence of the action, the Issuer
shall not be liable for any fees and expenses of legal
advisers of the Relevant Party incurred thereafter in
connection with the action, except as stated in sub-clause
4.1.6 above.
4.1.8 The Issuer shall not be liable in respect of any settlement of any
action effected without its written consent, such consent not to be unreasonably
withheld or delayed. The Issuer shall not, without the prior written consent of
the Relevant Party (such consent not to be unreasonably withheld or delayed)
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim or action in respect of which recovery may be sought
(whether or not any Relevant Party is an actual or potential party to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each Relevant Party from all liability arising out of
such claim or action and does not include a statement as to or an admission of
fault, culpability or failure to act by or on behalf of a Relevant Party.
4.1.9 Expenses, stamp duties, amendments: the Issuer will:
(a) Arranger's expenses: pay, or reimburse the Arranger for,
all reasonable out of pocket costs and expenses
(including United Kingdom value added tax and any other
taxes or duties thereon and fees and disbursements of
counsel to the Arranger) incurred by the Arranger in
connection with the preparation, negotiation, printing,
execution and delivery of this Agreement and all
documents contemplated by this Agreement;
(b) Dealers' expenses: pay, or reimburse each Dealer for,
all reasonable out of pocket costs and expenses
(including United Kingdom value added tax and any other
taxes or duties thereon and fees and disbursements of
counsel to such Dealer) incurred by such Dealer in
connection with the enforcement or protection of its
rights under this Agreement and all documents
contemplated by this Agreement;
(c) Stamp duties: pay all stamp, registration and other taxes and duties
(including any interest and penalties thereon or in connection therewith) which
may be payable upon or in connection with the creation and issue of the Notes
and the execution, delivery and performance of the Agreements and the Issuer
shall indemnify each Dealer against any claim, demand, action, liability,
damages, cost, loss or reasonable expense (including, without limitation, legal
fees and any applicable value added tax) which it may incur as a result or
arising out of or in relation to any failure to pay or delay in paying any of
the same;
(d) Amendments: notify each Dealer of any change in the
identity of or the offices of the Issue Agent and/or any
Paying Agent and any material change or amendment to or
termination of the Agency Agreement or the Deed of
Covenant not later than ten days prior to the making of
any such change or amendment or such termination; and it
will not permit to become effective any such change,
amendment or termination which could reasonably be
expected to affect adversely the interests of any Dealer
or the holder of any Notes then outstanding;
4.1.10 Yen Notes
(a) Subject to sub-clause 4.1.11(b) below, the Issuer will
in respect of Yen Notes comply with any applicable laws,
regulations and guidelines of Japanese governmental and
regulatory authorities relevant in the context of the
issue of Yen Notes, as amended from time to time, and
shall submit (or procure the submission on its behalf
of) such reports or information as may be required for
compliance with such laws, regulations and guidelines
from time to time.
(b) Yen Notes may be offered or sold in circumstances which
would not be so permissible at the date of this
Agreement if permitted by any change or amendment which
is made after the date of this Agreement in such rules,
regulations and guidelines or in such laws or directives
as are applicable to Yen Notes from time to time.
4.1.11 United Kingdom
(a) No deposit taking: in respect of any tranche of Notes
which must be redeemed before the first anniversary of
the date of its issue, the Issuer will issue Notes only
if the following conditions apply (or the Notes can
otherwise be issued without contravention of Section 19
of the FSMA):
(b) Selling restrictions: the Dealer represents, warrants
and agrees in the terms set out in sub-clause 3 of
Schedule 2; and
(c) Minimum denomination: the redemption value of each Note
is not less than (pound)100,000 (or an amount of
equivalent value denominated wholly or partly in a
currency other than Sterling), and no part of any Note
may be transferred unless the redemption value of that
part is not less than (pound)100,000 (or such an
equivalent amount); and
(d) Minimum denomination in U.S.$: the redemption value of
each Note is not less than U.S.$500,000 in accordance
with U.S. tax laws; and
4.1.12 The Issuer shall not do anything which is inconsistent with Schedule 2 of
this Agreement.
4.2 Compliance
The Issuer shall take such steps (in conjunction with the Dealer(s),
where appropriate) to ensure that any laws and regulations or
requirements of any governmental agency, authority or institution which
may from time to time be applicable to any Note shall be fully observed
and complied with and in particular (but without limitation) neither the
Issuer, nor any of its affiliates nor any person acting on its or its
affiliates behalf have engaged or will engage in any directed selling
efforts with respect to the Notes and it and its affiliates have
complied and will comply with the offering restrictions requirement of
Regulation S. Terms used in this Clause have the meanings given to them
by Regulation S under the Securities Act.
4.3 Selling restrictions
The Dealer represents, covenants and agrees that it has complied with
and will comply with the selling restrictions set out in Schedule 2 and
this Agreement. Subject to compliance with those restrictions, each
Dealer is hereby authorised by the Issuer to circulate the Disclosure
Documents to purchasers or potential purchasers of the Notes.
4.4 Dealers' obligations several
Should there be more than one Dealer party to this Agreement, the
obligations of each Dealer contained in this Agreement are several.
4.5 Status of Arranger
The Dealer agrees that the Arranger has only acted in an administrative
capacity to facilitate the establishment and/or maintenance of the
Programme and has no responsibility to it for (a) the adequacy,
accuracy, completeness or reasonableness of any representation,
warranty, undertaking, agreement, statement or information in the
Information Memorandum, this Agreement or any information provided in
connection with the Programme or (b) the nature and suitability to it of
all legal, tax and accounting matters and all documentation in
connection with the Programme or any issue of Notes thereunder.
5. CONDITIONS PRECEDENT
5.1 Conditions precedent to first issue
The Issuer agrees to deliver to the Dealer, prior to the first issue of
Notes to that Dealer, each of the documents set out in Schedule 1 in
form, substance and number satisfactory to the relevant Dealer.
5.2 Conditions precedent to each issue
In relation to each issue of Notes, it shall be a condition precedent to
the purchase thereof by any Dealer that (a) the representations and
warranties in Clause 3.1 shall be true and correct on each date upon
which an agreement for the sale of Notes is made hereunder and on the
date on which such Notes are issued and that (b) there is no other
material breach of the Issuer's obligations under any of the Agreements
or the Notes and (c) there shall have been, between the date upon which
an agreement for the issue of Notes is made pursuant to Clause 2.1 and
the issue date of the relevant Notes, no downgrading in the rating of
any of the Issuer's debt by any of the Rating Agencies or any other
relevant rating agency referred to in Clause 4.1.3 above.
5.3 Sterling Definitive Notes
In relation to an issue of Sterling Definitive Notes, it shall be a
condition precedent to the purchase thereof by the Dealer that the
Issuer supplies to the Dealer, not less than five days prior to the
first issue of such Notes to the Dealer confirmation from the Issue
Agent that the relevant agreed forms of Definitive Note have been
security printed and the same delivered to the Issue Agent.
6. TERMINATION AND APPOINTMENT
6.1 Termination
The Issuer may terminate the appointment of the Dealer, and the Dealer
may resign, on not less than ten days' written notice to the relevant
Dealer or the Issuer, as the case may be. The Issuer shall promptly
inform the other Dealer(s), the Issue Agent and the Paying Agents of any
such termination or resignation. The rights and obligations of each
party hereto shall not terminate in respect of any rights or obligations
accrued or incurred before the date on which such termination takes
effect and the provisions of sub clause 4.1.4 (Indemnity), 4.1.6, 4.1.7,
4.1.8 and 4.1.9 (Expenses, stamp duties amendments) shall survive
termination of this Agreement and delivery against payment for any of
the Notes.
6.2 Additional Dealers
Nothing in this Agreement shall prevent the Issuer from appointing one
or more additional Dealers upon the terms of this Agreement provided
that any additional Dealer shall have first confirmed acceptance of its
appointment upon such terms in writing to the Issuer in substantially
the form of the letter set out in Schedule 5, whereupon it shall become
a party to this Agreement vested with all the authority, rights, powers,
duties and obligations as if originally named as a Dealer hereunder. The
Issuer shall promptly inform the other Dealer(s), the Issue Agent and
the Paying Agents of any such appointment. The Issuer hereby agrees to
supply to such additional Dealer, upon such appointment, such legal
opinions as are specified in paragraph 6 of Schedule 1, if requested, or
reliance letters in respect thereof.
7. NOTICES
7.1 Written Communication
Any communication to be made under this Agreement shall be made in
writing and, unless otherwise agreed, be made by fax, letter or by
telephone (to be confirmed promptly by fax or letter).
7.2 Delivery
7.2.1 Any communication by letter shall be made to the intended
recipient and marked for the attention of the person, or any
one of them, at its relevant address and shall be deemed to
have been made upon delivery.
7.2.2 Any communication to be made by fax shall be made to the
intended recipient and marked for the attention of the person,
or any one of them, at its relevant fax number and shall be
deemed to have been received when that fax communication has
been received by the intended recipient in legible form.
7.2.3 Any communication to be made by telephone shall be made to the
intended recipient at the relevant telephone number from time
to time designated by that party to the other parties for the
purpose of this Agreement and shall be deemed to have been
received when made provided that prompt confirmation of that
communication is given by fax or letter.
7.3 Contact details
For purposes of Clause 7.2, the relevant contact details of each party
to this Agreement shall be as set out in the Programme Summary, or as
otherwise notified by any party to each other party to this Agreement.
7.4 Receipt
7.4.1 A communication given under this Agreement but received on a
non-Business Day or after business hours in the place of
receipt will only be deemed to be given on the next Business
Day in that place.
7.4.2 A communication under this Agreement to the Dealer will only
be effective on actual receipt by the Dealer.
7.5 Language
7.5.1 Any notice given in connection with the Agreements or Note must be in
English.
7.5.2 Any other document provided in connection with the Agreements or Note must
be:
(a) in English; or
(b) if not in English, (unless the Dealer otherwise agrees)
accompanied by a certified English translation. In this
case, the English translation prevails unless the
document is a constitutional, statutory or other
official document.
7.6 Electronic communication
7.6.1 Any communication to be made between parties to this Agreement
under or in connection with the Agreements may be made by
electronic mail or other electronic means if the relevant
parties:
(a) agree that, unless and until notified to the contrary,
this is to be an accepted form of communication;
(b) notify each other in writing of their electronic mail
address and/or any other information required to enable
the sending and receipt of information by that means;
and
(c) notify each other of any change to their address or any
other such information supplied by them.
7.6.2 Any electronic communication made between those parties will
be effective only when actually received in readable form at
the correct address.
8. ASSIGNMENT
If, at any time, any Dealer shall transfer all or substantially all of
its Euro-commercial paper business to any affiliate then, on the date
such transfer becomes effective, such affiliate shall become the
successor to the relevant Dealer under this Agreement without the
execution or filing of any paper or any further act on the part of the
parties hereto so that the Issuer and such affiliate shall acquire and
become subject to the same rights and obligations between themselves as
if they had entered into an agreement in the form (the relevant changes
having been made) of this Agreement. After the said effective date all
references in this Agreement to the relevant Dealer shall be deemed to
be references to such affiliate. The relevant Dealer shall, as soon as
reasonably practicable, give notice of any such transfer to the Issuer.
In this Clause 8, "affiliate" means, in relation to any person, any
entity controlled, directly or indirectly, by such person, any entity
that controls, directly or indirectly, such person, or any entity under
common control with such person. For this purpose "control" of any
entity or person means ownership of a majority of the voting power of
the entity or person.
9. THIRD PARTY RIGHTS
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.
10. LAW AND JURISDICTION
10.1 Governing law
This Agreement and all matters arising from or connected with it are
governed by, and shall be construed in accordance with, English law.
10.2 English courts
The courts of England have exclusive jurisdiction to settle any dispute
(a "Dispute"), arising from or connected with this Agreement (including
a dispute regarding the existence, validity or termination of this
Agreement) or the consequences of its nullity.
10.3 Appropriate forum
The parties agree that the courts of England are the most appropriate
and convenient courts to settle any Dispute and, accordingly, that they
will not argue to the contrary.
10.4 Rights of the Dealer to take proceedings outside England
Clause 10.2 (English courts) is for the benefit of the Dealer only. As a
result, nothing in this Clause 10 (Law and jurisdiction) prevents the
Dealer from taking proceedings relating to a Dispute ("Proceedings") in
any other courts with jurisdiction. To the extent allowed by law, the
Dealer may take concurrent Proceedings in any number of jurisdictions.
10.5 Process agent
The Issuer agrees that the documents which start any Proceedings and any
other documents required to be served in relation to those Proceedings
may be served on it by being delivered to DENTSPLY Limited at Hamm Moor
Lane, Addleston, Weybridge, Surrey, KT15 2SE or, if different, its
registered office for the time being or at any address of the Issuer in
Great Britain at which process may be served on it in accordance with
Part XXIII of the Companies Act 1985. If such person is not or ceases to
be effectively appointed to accept service of process on behalf of the
Issuer, the Issuer shall, on the written demand of any Dealer addressed
and delivered to the Issuer appoint a further person in England to
accept service of process on its behalf and, failing such appointment
within 15 days, any Dealer shall be entitled to appoint such a person by
written notice addressed to the Issuer and delivered to the Issuer.
Nothing in this paragraph shall affect the right of any Dealer to serve
process in any other manner permitted by law. This clause applies to
Proceedings in England and to Proceedings elsewhere.
10.6 Waiver of immunity
Without waiving any legitimate defense to any claim, the Issuer
irrevocably and unconditionally:
10.6.1 agrees not to claim any immunity from proceedings brought by a
Dealer against it in relation to Agreements or a Note and to
ensure that no such claim is made on its behalf;
10.6.2 consents generally to the giving of any relief or the issue of
any process in connection with those proceedings; and
10.6.3 waives all rights of immunity in respect of it or its assets.
10.7 Waiver of trial by jury
EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION IN CONNECTION WITH ANY PROGRAMME AGREEMENT OR NOTE OR
ANY TRANSACTION CONTEMPLATED BY ANY PROGRAMME AGREEMENT. THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY COURT.
11. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of which
when taken together shall constitute a single agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
SCHEDULE 1
CONDITION PRECEDENT DOCUMENTS
1. Certified copies of the Issuer's constituting documents.
2. Certified copies of all documents evidencing the internal authorisations
and approvals required to be granted by the Issuer in connection with
the Programme.
3. Certified copies of any governmental or other consents and any filings
required in connection with the Programme;
4. Certified or conformed copies of:
(a) the Dealer Agreement, as executed;
(b) the Agency Agreement, as executed; and
(c) the Deed of Covenant, as executed.
5. A copy of confirmation that the Deed of Covenant has been delivered to
the Issue Agent.
6. Legal opinions from:
(a) Legal Adviser(s) acceptable to the Dealer(s) qualified in the law of the
jurisdiction of incorporation of the Issuer; and
(b) Legal Adviser(s) as to the laws of England acceptable to the Dealer(s);
(c) Legal adviser(s), acceptable to the Dealer(s) as to the federal tax laws
of the United States of America.
7. The Information Memorandum.
8. A list of the names, titles and specimen signatures of the persons
authorised:
(a) to sign on behalf of the Issuer this Agreement, the Deed of Covenant,
the Agency Agreement and the Notes;
(b) to sign on behalf of the Issuer all notices and other documents to be
delivered in connection therewith; and
(c) to take any other action on behalf of the Issuer in relation to the
Programme.
9. Confirmation from the Issuer or the Issue Agent that the relevant forms
of Global Note have been prepared and the same delivered to the Issue
Agent.
10. Confirmation that the Rating Agencies have granted ratings for the
Programme.
SCHEDULE 2
SELLING RESTRICTIONS
1. General
By its purchase and acceptance of Notes issued under this Agreement,
each Dealer represents, warrants and agrees that it will observe all
applicable laws and regulations in any jurisdiction in which it may
offer, sell, or deliver Notes; and that it will not directly or
indirectly offer, sell, resell, reoffer or deliver Notes or distribute
any Disclosure Document, circular, advertisement or other offering
material in any country or jurisdiction except under circumstances that
will result, to the best of its knowledge and belief, in compliance with
all applicable laws and regulations.
2. The United States of America
The Notes have not been and will not be registered under the Securities
Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons. Each Dealer represents and
agrees that it has offered and sold, and will offer and sell, Notes only
outside the United States to non U.S. persons in accordance with Rule
903 of Regulation S under the Securities Act. Accordingly, each Dealer
represents and agrees that neither it, its affiliates nor any persons
acting on its or their behalf have engaged or will engage in any
directed selling efforts with respect to the Notes, and that it and they
have complied and will comply with the offering restrictions requirement
of Regulation S. Each Dealer also agrees that, at or prior to
confirmation of sale of Notes, it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other
remuneration that purchases Notes from it a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons. Terms used above have the meanings given to them by
Regulation S under the Securities Act."
Terms used in this paragraph have the meanings given to them by
Regulation S under the Securities Act.
In addition:
(a) each Dealer represents and agrees that at any time (i) it has
not offered or sold, and will not offer or sell, Notes to a
person who is within the United States or its possessions, or
to a United States person, and (ii) it has not delivered and
will not deliver selling materials or Notes within the United
States or its possessions, except to the extent such offer,
sale or delivery would be permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D Rules");
(b) each Dealer represents and agrees that at any time it has and
will continue to have in effect procedures reasonably designed
to ensure that its employees or agents who are directly
engaged in selling Notes are aware that at any time such Notes
may not be offered or sold to a person who is within the
United States or its possessions or to a United States person,
except to the extent such offer or delivery would be permitted
under the D Rules;
(c) each Dealer that is a United States person represents and
agrees that at any time it is acquiring the Notes for purposes
of resale outside of the United States in connection with
their original issuance and if it retains Notes for its own
account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(6);
(d) each Dealer represents and agrees that, in connection with the
sale of the Notes it will not deliver the Notes in definitive
form within the United States or its possessions at any time;
and
(e) with respect to each affiliate that acquires Notes from a
Dealer for the purposes of offering or selling such Notes,
such Dealer repeats and confirms the representation and
agreements contained in paragraphs (a), (b), (c) and (d) on
such affiliate's behalf.
3. The United Kingdom
In relation to each issue of Notes, the Dealer purchasing such Notes
represents, warrants and undertakes to the Issuer that:
3.1 No deposit-taking: in relation to any Notes having a maturity of
less than one year from the
date of issue:
3.1.1 it is a person whose ordinary activities involve it in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of its business;
3.1.2 it has not offered or sold and will not offer or sell any such Notes other
than to persons:
(a) whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as
principal or agent) for the purposes of their
businesses; or
(b) who it is reasonable to expect will acquire, hold,
manage or dispose of investments (as principal or agent)
for the purposes of their businesses,
where the issue of the Notes would otherwise constitute a
contravention of Section 19 of the FSMA by the Issuer;
3.2 Financial promotion: it has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the
meaning of section 21 of the FSMA) received by it in connection with the
issue or sale of any Notes in circumstances in which section 21(1) of
the FSMA does not apply to the Issuer; and
3.3 General compliance: it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to any Notes in, from or otherwise involving the United Kingdom.
4. Japan
The Notes have not been and will not be registered under the Securities
and Exchange Law of Japan and, accordingly, each Dealer undertakes that
it will not offer or sell any Notes, directly or indirectly, in Japan or
to, or for the benefit of any Japanese Person or to others for
re-offering or resale, directly or indirectly, in Japan or to any
Japanese Person expect under circumstances which will result in
compliance with the Securities and Exchange Law of Japan and any other
applicable laws, regulations and guidelines promulgated by the relevant
Japanese governmental and regulatory authorities and in effect at the
relevant time. For the purposes of this paragraph, "Japanese Person"
shall mean any person resident in Japan, including any corporation or
other entity organised under the laws of Japan.
SCHEDULE 3
PROGRAMME SUMMARY
- ---------------------------------------
Issuer Arranger and Dealer
DENTSPLY International Inc. Citibank International plc
Address: 221 West Philadelphia Street Address: Citigroup Centre
York Canada Square
Pennsylvania 17405-0872 Canary Wharf
London E14 5LB
Telephone:+ (717) 849 4262 Telephone: + 44 20 7986 9070
Fax: + (717) 849 4486 Fax: + 44 20 7986 6837
Contact: Treasurer Contact: Short-Term Fixed Income Desk
- ---------------------- ---------------- ----------------------------------
- ------------------------------------------- ----------------------------------
Issue and Paying Agent
Citibank, N.A.
Address: Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
Telephone: + 44 20 7508 3826
Fax: + 44 20 7508 3884
Contact: Agency and Trust
- ---------------------- ----------------- ----------------------------------
- ---------------------- -------------- ----------------------------------
Maximum Amount: Denominations:
U.S. $250,000,000 U.S.$500,000
Euro500,000
GBP500,000
JPY100,000,000
CHF 500,000
(or other conventionally
accepted denominations
in other currencies
provided that the Dollar
Equivalent of any Note
must be at least
U.S.$500,000 on the
issue date as determined
at the spot rate on such
date)
- ------------------------------ ---------------------------------------------
- ---------------------------------------------- --------------------------
Governing Law: Form of Notes:
Agreements: English Exchangeable Global Notes with Definitive Notes
available on default or in certain other limited
circumstances Sterling Definitive Notes
Notes: English Notes may be issued at a discount to face value, may
bear interest or may be Index Linked Notes (other than
an Index which is not based on the value of property
that is actively traded or which is based on real
estate).
- ------------------------------ -------------------------------------------
- ----------------------- ----------------------------- --------------------------
Minimum Term: Maximum Term:
Seven days (or such shorter period as may be agreed 183 days
between the Issuer, the relevant Dealer and the Issue
Agent)
- ---------------------------------------------- --------------------------
- ----------------------------------------- --------------------------
Clearing Systems: Selling Restrictions:
Euroclear United Kingdom
Euroclear, France U.S.A.
Clearstream, Luxembourg Japan
- -------------------------------------------------------------------------------
- ------------------------------------- ---------------------------
Agent for Service of Process:
Dentsply Limited
Address: Hamm Moor Lane
Addlestone
Weybridge
Surrey KT15 2SE
Telephone: + 44 (0) 1932 853 422
Fax: + 44 (0) 1932 828 887
Contact: General Manager
SCHEDULE 4
INCREASE OF MAXIMUM AMOUNT
[Letterhead of Issuer]
[Date]
To: Citibank International plc
Citibank, N.A. (as Issue Agent and Principal Paying Agent)
Dear Sirs
U.S.$250,000,000 Euro-commercial paper programme
We refer to a dealer agreement dated 26 October 2006 (the "Dealer Agreement")
between ourselves as Issuer, the Arranger and the Dealer party thereto relating
to a U.S.$250,000,000 Euro-commercial paper programme (the "Programme"). Terms
used in the Dealer Agreement shall have the same meaning in this letter.
In accordance with Clause 2.5 of the Dealer Agreement, we hereby notify each of
the addressees listed above that the Maximum Amount of the Programme is to be
increased from U.S.$[o] to U.S.$[o] with effect from [date], subject to delivery
of the following documents:
(a) an updated or supplemental Information Memorandum reflecting the
increase in the Maximum Amount of the Programme.
(b) certified copies of all documents evidencing the internal authorisations
and approvals required to be granted by the Issuer for such increase in
the Maximum Amount;
(c) certified copies of [specify any governmental or other consents required
by the Issuer for such increase];
(d) legal opinions from (i) legal advisers acceptable to the Dealer
qualified in the law of the jurisdiction of incorporation of the Issuer
and (ii) Clifford Chance LLP as to the laws of England relating to such
increase;
(e) a list of names, titles and specimen signatures of the persons
authorised to sign on behalf of the Issuer all notices and other
documents to be delivered in connection with such an increase in the
Maximum Amount; and
(f) written confirmation that the Rating Agencies are maintaining their
current ratings for the Programme.
From the date on which such increase in the Maximum Amount becomes effective,
all references in the Dealer Agreement to the Maximum Amount or the amount of
the Programme shall be construed as references to the increased Maximum Amount
as specified herein.Yours faithfully
...............................
for and on behalf of
DENTSPLY International Inc.
SCHEDULE 5
APPOINTMENT OF NEW DEALER
[Letterhead of Issuer]
[Date]
To: [Name of new Dealer]
Dear Sirs
U.S.$250,000,000 Euro-commercial paper programme
We refer to a dealer agreement dated 26 October 2006 (the "Dealer Agreement")
between ourselves as Issuer, the Arranger and the Dealer party thereto relating
to a U.S.$250,000,000 Euro-commercial paper programme (the "Programme"). Terms
used in the Dealer Agreement shall have the same meaning in this letter.
In accordance with Clause 6.2 of the Dealer Agreement, we hereby appoint you as
an additional dealer for the Programme upon the terms of the Dealer Agreement
with [immediate effect/effect from [date]]. Please confirm acceptance of your
appointment upon such terms by signing and returning to us the enclosed copy of
this letter, whereupon you will, in accordance with Clause 6.2 of the Dealer
Agreement, become a party to the Dealer Agreement vested with all the authority,
rights, powers, duties and obligations as if originally named as a Dealer
thereunder.
Yours faithfully
.............................
for and on behalf of
DENTSPLY International Inc.
[On copy]
We hereby confirm acceptance of our appointment as a Dealer upon the terms of
the Dealer Agreement referred to above. For the purposes of Clause 7 (Notices),
our contact details are as follows:
[Name of Dealer]
Address: [ ]
Telephone: [ ]
Fax: [ ]
Telex: [ ]
Contact: [ ]
Dated: .................................
Signed: .................................
for [Name of new Dealer]
SCHEDULE 6
FORM OF CALCULATION AGENCY AGREEMENT
THIS AGREEMENT is made on [date]
BETWEEN
(1) DENTSPLY INTERNATIONAL INC. (the "Issuer"); and
(2) [ ], as the calculation agent appointed pursuant to
Clause 6 hereof (the
"Calculation Agent", which expression shall include any successor
thereto).
WHEREAS:
(A) Under a dealer agreement (as amended, supplemented and/or restated from
time to time, the "Dealer Agreement") dated 26 October 2006 and made
between the Issuer, the Arranger and the Dealer(s) referred to therein,
and an issue agency agreement (as amended, supplemented and/or restated
from time to time, the "Agency Agreement") dated 26 October 2006 and
made between the Issuer and the agents referred to therein, the Issuer
established a Euro-commercial paper programme (the "Programme").
(B) The Dealer Agreement contemplates, among other things, the issue under
the Programme of index linked notes and provides for the appointment of
calculation agents in relation thereto. Each such calculation agent's
appointment shall be on substantially the terms and subject to the
conditions of this Agreement.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
Terms not expressly defined herein shall have the meanings given to them
in the Dealer Agreement or the Agency Agreement.
1.2 Legislation
Any reference in this Agreement to any legislation (whether primary
legislation or regulations or other subsidiary legislation made pursuant
to primary legislation) shall be construed as a reference to such
legislation as the same may have been, or may from time to time be,
amended or re-enacted.
1.3 Index Linked Notes
"Relevant Index Linked Notes" means such Index Linked Notes in respect
of which the Calculation Agent is appointed.
2. APPOINTMENT OF CALCULATION AGENT
The Issuer appoints the Calculation Agent as its agent for the purpose
of calculating the redemption amount and/or, if applicable, the amount
of interest in respect of the Relevant Index Linked Notes upon the terms
and subject to the conditions of this Agreement. The Calculation Agent
accepts such appointment.
3. DETERMINATION AND NOTIFICATION
3.1 Determination
The Calculation Agent shall determine the redemption amount of, and/or,
if applicable, the amount of interest payable on, each Relevant Index
Linked Note in accordance with the redemption calculation applicable
thereto.
3.2 Notification
The Calculation Agent shall as soon as it has made its determination as
provided for in Clause 3.1 above (and, in any event, no later than the
close of business on the date on which the determination is made) notify
the Issuer and the Principal Paying Agent (if other than the Calculation
Agent) of the redemption amount and/or, if applicable, the amount of
interest so payable.
4. STAMP DUTIES
The Issuer will pay all stamp, registration and other taxes and duties
(including any interest and penalties thereon or in connection
therewith) payable in connection with the execution, delivery and
performance of this Agreement.
5. INDEMNITY AND LIABILITY
5.1 Indemnity
The Issuer shall indemnify and hold harmless on demand the Calculation
Agent against any claim, demand, action, liability, damages, cost, loss
or expense (including, without limitation, legal fees and any applicable
value added tax) which it may incur arising out of, in connection with
or based upon the exercise of its powers and duties as Calculation Agent
under this Agreement, except such as may result from its own negligence
or bad faith or that of its officers, employees or agents.
5.2 Liability
The Calculation Agent may consult as to legal matters with lawyers
selected by it, who may be employees of, or lawyers to, the Issuer. If
such consultation is made, the Calculation Agent shall be protected and
shall incur no liability for action taken or not taken by it as
Calculation Agent or suffered to be taken with respect to such matters
in good faith, without negligence and in accordance with the opinion of
such lawyers.
6. CONDITIONS OF APPOINTMENT
The Calculation Agent and the Issuer agree that its appointment will be
subject to the following conditions:
(a) No obligations: in acting under this Agreement, the
Calculation Agent shall act as an independent expert and shall
not assume any obligations towards or relationship of agency
or trust for the Issuer or the owner or holder of any of the
Relevant Index Linked Notes or any interest therein;
(b) Notices: unless otherwise specifically provided in this
Agreement, any order, certificate, notice, request, direction
or other communication from the Issuer made or given under any
provision of this Agreement shall be sufficient if signed or
purported to be signed by a duly authorised employee of the
Issuer;
(c) Duties: the Calculation Agent shall be obliged to perform only
those duties which are set out in this Agreement and in the
redemption calculation relating to the Relevant Index Linked
Notes;
(d) Ownership, interest: the Calculation Agent and its officers
and employees, in its individual or any other capacity, may
become the owner of, or acquire any interest in, any Relevant
Index Linked Notes with the same rights that the Calculation
Agent would have if it were not the Calculation Agent
hereunder; and
(e) Calculations and determinations: all calculations and
determinations made pursuant to this Agreement by the
Calculation Agent shall (save in the case of manifest error)
be binding on the Issuer, the Calculation Agent and (if other
than the Calculation Agent) the holder(s) of the Relevant
Index Linked Notes and no liability to such holder(s) shall
attach to the Calculation Agent in connection with the
exercise by the Calculation Agent of its powers, duties or
discretion under or in respect of the Relevant Index Linked
Notes in accordance with the provisions of this Agreement.
7. ALTERNATIVE APPOINTMENT
If, for any reason, the Calculation Agent ceases to act as such or fails
to comply with its obligations under Clause 3, the Issuer shall appoint
the Principal Paying Agent as calculation agent in respect of the
Relevant Index Linked Notes.
8. THIRD PARTY RIGHTS
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.
9. LAW AND JURISDICTION
9.1 Governing law
This Agreement is governed by, and shall be construed in accordance
with, English law.
9.2 Jurisdiction
The Issuer agrees for the benefit of the Calculation Agent that the
courts of England shall have jurisdiction to hear and determine any
suit, action or proceedings, and to settle any disputes, which may arise
out of or in connection with this Agreement (respectively, "Proceedings"
and "Disputes") and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
9.3 Appropriate forum
The Issuer irrevocably waives any objection which it might now or
hereafter have to the courts of England being nominated as the forum to
hear and determine any Proceedings and to settle any Disputes, and
agrees not to claim that any such court is not a convenient or
appropriate forum.
9.4 Process agent
The Issuer agrees that the process by which any Proceedings in England
are begun may be served on it by being delivered to DENTSPLY Limited at
Hamm Moor Lane, Addlestone, Weybridge, Surrey, KT15 2SE or, if
different, its registered office for the time being. If such person is
not or ceases to be effectively appointed to accept service of process
on behalf of the Issuer, the shall, on the written demand of the
Calculation Agent addressed to the Issuer and delivered to the Issuer
appoint a further person in England to accept service of process on its
behalf and, failing such appointment within 15 days, the Calculation
Agent shall be entitled to appoint such a person by written notice
addressed to the Issuer and delivered to the Issuer. Nothing in this
paragraph shall affect the right of the Calculation Agent to serve
process in any other manner permitted by law.
11.2 Waiver of immunity
Without waiving any legitimate defense to any claim, the Issuer
irrevocably and unconditionally:
11.2.1 agrees not to claim any immunity from proceedings brought by
the Calculation Agent against it in relation to this Agreement
and to ensure that no such claim is made on its behalf;
11.2.2 consents generally to the giving of any relief or the issue of
any process in connection with those proceedings; and
11.2.3 waives all rights of immunity in respect of it or its assets.
11.3 Waiver of trial by jury
EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION IN CONNECTION WITH ANY PROGRAMME AGREEMENT OR NOTE OR
ANY TRANSACTION CONTEMPLATED BY ANY PROGRAMME AGREEMENT. THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY COURT.
10. PARTIAL INVALIDITY
If, at any time, any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
11. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of which
when taken together shall constitute a single agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
DENTSPLY INTERNATIONAL INC.
By: ..................................
[NAME OF CALCULATION AGENT]
By: ..................................]
Signature Page
The Issuer
DENTSPLY INTERNATIONAL INC.
By:
The Arranger and Dealer
CITIBANK INTERNATIONAL plc
By: