------------------------------------------------------------------------------
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
------------------------------------------------------------
DEALER AGREEMENT
relating to a U.S. $250,000,000
EURO-COMMERCIAL PAPER PROGRAMME
------------------------------------------------------------
<PAGE>
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
pen
