ISSUING AND PAYING AGENCY AGREEMENT
This Agreement, dated as of August 12, 1999, is by and between
DENTSPLY International Inc. (the "Issuer") and The Chase Manhattan Bank
("Chase").
1. APPOINTMENT AND ACCEPTANCE
The Issuer hereby appoints Chase as its issuing and paying agent
in connection with the issuance and payment of certain short-term
promissory notes of the Issuer (the "Notes"), as further described
herein, and Chase agrees to act as such agent upon the terms and
conditions contained in this Agreement.
2. COMMERCIAL PAPER PROGRAMS
The Issuer may establish one or more commercial paper programs
under this Agreement by delivering to Chase a completed program
schedule (the "Program Schedule"), with respect to each such program.
Chase has given the Issuer a copy of the current form of Program
Schedule and the Issuer shall complete and return its first Program
Schedule to Chase prior to or simultaneously with the execution of this
Agreement. In the event that any of the information provided in, or
attached to, a Program Schedule shall change, the Issuer shall promptly
inform Chase of such change in writing.
3. NOTES
All Notes issued by the Issuer under this Agreement shall be
short-term promissory notes, exempt from the registration requirements
of the Securities Act of 1933, as amended, as indicated on the Program
Schedules, and from applicable state securities laws. The Notes may be
placed by dealers (the "Dealers") pursuant to Section 4 hereof. Notes
shall be issued in either certificated or book-entry form.
4. AUTHORIZED REPRESENTATIVES
The Issuer shall deliver to Chase a duly adopted corporate
resolution from the Issuer's Board of Directors (or other governing
body) authorizing the issuance of Notes under each program established
pursuant to this Agreement and a certificate of incumbency, with
specimen signatures attached, of those officers, employees and agents
of the Issuer authorized to take certain actions with respect to the
Notes as provided in this Agreement (each such person is hereinafter
referred to as an "Authorized Representative"). Until Chase receives
any subsequent incumbency certificates of the Issuer, Chase shall be
entitled to rely on the last incumbency certificate delivered to it for
the purpose of determining the Authorized Representatives. The Issuer
represents and warrants that each Authorized Representative may appoint
other officers, employees and agents of the Issuer (the "Delegates"),
including without limitation any Dealers, to issue instructions to
Chase under this Agreement, and take other actions on the Issuer's
behalf hereunder, provided that notice of the appointment of each
Delegate is delivered to Chase in writing. Each such appointment shall
remain in effect unless and until revoked by the Issuer in a written
notice to Chase.
5. CERTIFICATED NOTES
If and when the Issuer intends to issue certificated notes
("Certificated Notes"), the Issuer and Chase shall agree upon the form
of such Notes. Thereafter, the Issuer shall from time to time deliver
to Chase adequate supplies of Certificated Notes which will be in
bearer
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form, serially numbered, and shall be executed by the manual or
facsimile signature of an Authorized Representative. Chase will
acknowledge receipt of any supply of Certificated Notes received from
the Issuer, noting any exceptions to the shipping manifest or
transmittal letter (if any), and will hold the Certificated Notes in
safekeeping for the Issuer in accordance with Chase's customary
practices. Chase shall not have any liability to the Issuer to
determine by whom or by what means a facsimile signature may have been
affixed on Certificated Notes, or to determine whether any facsimile or
manual signature is genuine, if such facsimile or manual signature
resembles the specimen signature attached to the Issuer's certificate
of incumbency with respect to such Authorized Representative. Any
Certificated Note bearing the manual or facsimile signature of a person
who is an Authorized Representative on the date such signature was
affixed shall bind the Issuer after completion thereof by Chase,
notwithstanding that such person shall have ceased to hold his or her
office on the date such Note is countersigned or delivered by Chase.
6. BOOK-ENTRY NOTES
The Issuer's book-entry notes ("Book-Entry Notes") shall not be
issued in physical form, but their aggregate face amount shall be
represented by a master note (the "Master Note") in the form of Exhibit
A executed by the Issuer pursuant to the book-entry commercial paper
program of The Depository Trust Company ("DTC"). Chase shall maintain
the Master Note in safekeeping, in accordance with its customary
practices, on behalf of Cede & Co., the registered owner thereof and
nominee of DTC. As long as Cede & Co. is the registered owner of the
Master Note, the beneficial ownership interest therein shall be shown
on, and the transfer of ownership thereof shall be effected through,
entries on the books maintained by DTC and the books of its direct and
indirect participants. The Master Note and the Book-Entry Notes shall
be subject to DTC's rules and procedures, as amended from time to
time. Chase shall not be liable or responsible for sending transaction
statements of any kind to DTC's participants or the beneficial owners
of the Book-Entry Notes, or for maintaining, supervising or reviewing
the records of DTC or its participants with respect to such Notes. In
connection with DTC's program, the Issuer understands that as one of
the conditions of its participation therein, it shall be necessary for
the Issuer and Chase to enter into a Letter of Representations, in the
form of Exhibit B hereto, and for DTC to receive and accept such Letter
of Representations. In accordance with DTC's program, Chase shall
obtain from the CUSIP Service Bureau a written list of CUSIP numbers
for Issuer's Book-Entry Notes, and Chase shall deliver such list to
DTC. The CUSIP Service Bureau shall xxxx the Issuer directly for the
fee or fees payable for the list of CUSIP numbers for the Issuer's
Book-Entry Notes.
7. ISSUANCE INSTRUCTIONS TO CHASE; PURCHASE PAYMENTS
The Issuer understands that all instructions under this Agreement
are to be directed to Chase's Commercial Paper Operations Department.
Chase shall provide the Issuer, or, if applicable, the Issuer's
Dealers, with access to Chase's Money Market Issuance System or other
electronic means (collectively, the "System") in order that Chase may
receive electronic instructions for the issuance of Notes. Electronic
instructions must be transmitted in accordance with the procedures
furnished by Chase to the Issuer or its Dealers in connection with the
System. These transmissions shall be the equivalent to the giving of a
duly authorized written and signed instruction which Chase may act upon
without liability. In the event that the System is inoperable at any
time, an Authorized Representative or a Delegate may deliver written,
telephone or facsimile instructions to Chase, which instructions shall
be verified in accordance with any security procedures agreed upon by
the parties. Chase shall incur no liability to the Issuer in acting
upon instructions believed by Chase in good faith to have been given by
an Authorized Representative or a Delegate. In the event
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that a discrepancy exists between a telephonic instruction and a
written confirmation, the telephonic instruction will be deemed the
controlling and proper instruction. Chase may electronically record
any conversations made pursuant to this Agreement, and the Issuer
hereby consents to such recordings. All issuance instructions
regarding the Notes must be received by 1:00 P.M. New York time in
order for the Notes to be issued or delivered on the same day.
(a) Issuance and Purchase of Book-Entry Notes.
Upon receipt of issuance instructions from the Issuer or
its Dealers with respect to Book-Entry Notes, Chase shall
transmit such instructions to DTC and direct DTC to cause
appropriate entries of the Book-Entry Notes to be made in
accordance with DTC's applicable rules, regulations and
procedures for book-entry commercial paper programs. Chase
shall assign CUSIP numbers to the Issuer's Book-Entry Notes
to identify the Issuer's aggregate principal amount of
outstanding Book-Entry Notes in DTC's system, together with
the aggregate unpaid interest (if any) on such Notes.
Promptly following DTC's established settlement time on
each issuance date, Chase shall access DTC's system to
verify whether settlement has occurred with respect to the
Issuer's Book-Entry Notes. Prior to the close of business
on such business day, Chase shall deposit immediately
available funds in the amount of the proceeds due the
Issuer (if any) to the Issuer's account at Chase and
designated in the applicable Program Schedule (the
"Account"), provided that Chase has received DTC's
confirmation that the Book-Entry Notes have settled in
accordance with DTC's applicable rules, regulations and
procedures. Chase shall have no liability to the Issuer
whatsoever if any DTC participant purchasing a Book-Entry
Note fails to settle or delays in settling its balance with
DTC or if DTC fails to perform in any respect.
(b) Issuance and Purchase of Certificated Notes. Upon
receipt of issuance instructions with respect to
Certificated Notes, Chase shall: (a) complete each
Certificated Note as to principal amount, date of issue,
maturity date, place of payment, and rate or amount of
interest (if such Note is interest bearing) in accordance
with such instructions; (b) countersign each Certificated
Note; and (c) deliver each Certificated Note in accordance
with the Issuer's instructions, except as otherwise set
forth below. Whenever Chase is instructed to deliver any
Certificated Note by mail, Chase shall strike from the
Certificated Note the word "Bearer," insert as payee the
name of the person so designated by the Issuer and effect
delivery by mail to such payee or to such other person as
is specified in such instructions to receive the
Certificated Note. The Issuer understands that, in
accordance with the custom prevailing in the commercial
paper market, delivery of Certificated Notes shall be made
before the actual receipt of payment for such Notes in
immediately available funds, even if the Issuer instructs
Chase to deliver a Certificated Note against payment.
Therefore, once Chase has delivered a Certificated Note to
the designated recipient, the Issuer shall bear the risk
that such recipient may fail to remit payment of such Note
or return such Note to Chase. Delivery of Certificated
Notes shall be subject to the rules of the New York
Clearing House in effect at the time of such delivery.
Funds received in payment of Certificated Notes shall be
credited to the Account.
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8. USE OF SALES PROCEEDS IN ADVANCE OF PAYMENT
Chase shall not be obligated to credit the Issuer's Account
unless and until payment of the purchase price of each Note is received
by Chase. From time to time, Chase, in its sole discretion, may permit
the Issuer to have use of funds payable with respect to a Note prior to
Chase's receipt of the sales proceeds of such Note. If Chase makes a
deposit, payment or transfer of funds on behalf of the Issuer before
Chase receives payment for any Note, such deposit, payment or transfer
of funds shall represent an advance by Chase to the Issuer to be repaid
promptly, and in any event on the same day as it is made, from the
proceeds of the sale of such Note, or by the Issuer if such proceeds
are not received by Chase.
9. PAYMENT OF MATURED NOTES
On any day when a Note matures or is prepaid, the Issuer shall
transmit, or cause to be transmitted, to the Account, prior to 2:30
P.M. New York time on the same day, an amount of immediately available
funds sufficient to pay the aggregate principal amount of such Note and
any applicable interest due. Chase shall pay the interest (if any) and
principal on a Book-Entry Note to DTC in immediately available funds,
which payment shall be by net settlement of Chase's account at DTC.
Chase shall pay Certificated Notes upon presentment. Chase shall have
no obligation under the Agreement to make any payment for which there
is not sufficient, available and collected funds in the Account, and
Chase may, without liability to the Issuer, refuse to pay any Note that
would result in an overdraft to the Account.
10. OVERDRAFTS
(a) Intraday overdrafts with respect to each Account
shall be subject to Chase's policies as in effect from time
to time.
(b) An overdraft will exist in an Account if Chase, in
its sole discretion, (i) permits an advance to be made
pursuant to Section 8 and, notwithstanding the provisions
of Section 8, such advance is not repaid in full on the
same day as it is made, or (ii) pays a Note pursuant to
Section 9 in excess of the available collected balance in
such Account. Overdrafts shall be subject to Chase's
established banking practices, including, without
limitation, the imposition of interest, funds usage charges
and administrative fees. The Issuer shall repay any such
overdraft, fees and charges no later than the next business
day, together with interest on the overdraft at the rate
established by Chase for the Account, computed from and
including the date of the overdraft to the date of
repayment.
11. NO PRIOR COURSE OF DEALING
No prior action or course of dealing on the part of Chase with
respect to advances of the purchase price or payments of matured Notes
shall give rise to any claim or cause of action by the Issuer against
Chase in the event that Chase refuses to pay or settle any Notes for
which the Issuer has not timely provided funds as required by this
Agreement.
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12. RETURN OF CERTIFICATED NOTES
Chase will in due course cancel any Certificated Note presented
for payment and return such Note to the Issuer. Chase shall also
cancel and return to the Issuer any spoiled or voided Certificated
Notes. Promptly upon written request of the Issuer or at the
termination of this Agreement, Chase shall destroy all blank, unissued
Certificated Notes in its possession and furnish a certificate to the
Issuer certifying such actions.
13. INFORMATION FURNISHED BY CHASE
Upon the reasonable request of the Issuer, Chase shall promptly
provide the Issuer with information with respect to any Note issued and
paid hereunder, provided, that the Issuer delivers such request in
writing and, to the extent applicable, includes the serial number or
note number, principal amount, payee, date of issue, maturity date,
amount of interest (if any) and place of payment of such Note.
14. REPRESENTATIONS AND WARRANTIES
The Issuer represents and warrants that: (i) it has the right,
capacity and authority to enter into this Agreement; and (ii) it will
comply with all of its obligations and duties under this Agreement.
The Issuer further represents and agrees that each Note issued and
distributed upon its instruction pursuant to this Agreement shall
constitute the Issuer's representation and warranty to Chase that such
Note is a legal, valid and binding obligation of the Issuer, and that
such Note is being issued in a transaction which is exempt from
registration under the Securities Act of 1933, as amended, and any
applicable state securities law.
15. DISCLAIMERS
Neither Chase nor its directors, officers, employees or agents
shall be liable for any act or omission under this Agreement except in
the case of gross negligence or willful misconduct. IN NO EVENT SHALL
CHASE BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE
OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS),
EVEN IF CHASE HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE
AND REGARDLESS OF THE FORM OF ACTION. In no event shall Chase be
considered negligent in consequence of complying with DTC's rules,
regulations and procedures. The duties and obligations of Chase, its
directors, officers, employees or agents shall be determined by the
express provisions of this Agreement and they shall not be liable
except for the performance of such duties and obligations as are
specifically set forth herein and no implied covenants shall be read
into this Agreement against them. Neither Chase nor its directors,
officers, employees or agents shall be required to ascertain whether
any issuance or sale of any Notes (or any amendment or termination of
this Agreement) has been duly authorized or is in compliance with any
other agreement to which the Issuer is a party (whether or not Chase is
also a party to such agreement).
16. INDEMNIFICATION
The Issuer agrees to indemnify and hold harmless Chase, its
directors, officers, employees and agents from and against any and all
liabilities, claims, losses, damages, penalties, costs and expenses
(including attorneys' fees and disbursements) suffered or incurred by
or asserted or assessed against Chase or any of them arising out of
Chase or any of them acting as the Issuer's agent under this Agreement,
except for such liability, claim,
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loss, damage, penalty, cost or expense resulting from the gross
negligence or willful misconduct of Chase, its directors, officers,
employees or agents. This indemnity will survive the termination of
this Agreement.
17. OPINION OF COUNSEL
The Issuer shall deliver to Chase all documents it may reasonably
request relating to the existence of the Issuer and authority of the
Issuer for this Agreement, including, without limitation, an opinion of
counsel, substantially in the form of Exhibit C hereto.
18. NOTICES
All notices, confirmations and other communications hereunder
shall (except to the extent otherwise expressly provided) be in writing
and shall be sent by first-class mail, postage prepaid, by telecopier
or by hand, addressed as follows, or to such other address as the party
receiving such notice shall have previously specified to the party
sending such notice:
If to the Issuer: DENTSPLY International Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Chase concerning the daily issuance and redemption of Notes:
Attention: Commercial Paper Operations
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All other: Attention: Commercial Paper Service Delivery Unit
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
19. COMPENSATION
The Issuer shall pay compensation for services pursuant to this
Agreement in accordance with the pricing schedules furnished by Chase
to the Issuer from time to time and upon such payment terms as the
parties shall determine. The Issuer shall also reimburse Chase for any
fees and charges imposed by DTC with respect to services provided in
connection with the Book-Entry Notes.
20. BENEFIT OF AGREEMENT
This Agreement is solely for the benefit of the parties hereto
and no other person shall acquire or have any right under or by virtue
hereof.
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21. TERMINATION
This Agreement may be terminated at any time by either party by
written notice to the other, but such termination shall not affect the
respective liabilities of the parties hereunder arising prior to such
termination.
22. FORCE MAJEURE
In no event shall Chase be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances
beyond Chase's control, including, but not limited to, acts of God,
flood, war (whether declared or undeclared), terrorism, fire, riot,
strikes or work stoppages for any reason, embargo, government action,
including any laws, ordinances, regulations or the like which restrict
or prohibit the providing of the services contemplated by this
Agreement, inability to obtain material, equipment, or communications
or computer facilities, or the failure of equipment or interruption of
communications or computer facilities, and other causes beyond Chase's
control whether or not of the same class or kind as specifically named
above.
23. ENTIRE AGREEMENT
This Agreement, together with the exhibits attached hereto,
constitutes the entire agreement between Chase and the Issuer with
respect to the subject matter hereof and supersedes in all respects all
prior proposals, negotiations, communications, discussions and
agreements between the parties concerning the subject matter of this
Agreement.
24. WAIVERS AND AMENDMENTS
No failure or delay on the part of any party in exercising any
power or right under this Agreement shall operate as a waiver, nor does
any single or partial exercise of any power or right preclude any other
or further exercise, or the exercise of any other power or right. Any
such waiver shall be effective only in the specific instance and for
the purpose for which it is given. No amendment, modification or
waiver of any provision of this Agreement shall be effective unless the
same shall be in writing and signed by the Issuer and Chase.
25. BUSINESS DAY
Whenever any payment to be made hereunder shall be due on a day
which is not a business day for Chase, then such payment shall be made
on Chase's next succeeding business day.
26. COUNTERPARTS
This Agreement may be executed in counterparts, each of which
shall be deemed an original and such counterparts together shall
constitute but one instrument.
27. HEADINGS
The headings in this Agreement are for purposes of reference only
and shall not in any way limit or otherwise affect the meaning or
interpretation of any of the terms of this Agreement.
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28. GOVERNING LAW
This Agreement and the Notes shall be governed by and construed
in accordance with the internal laws of the State of New York, without
regard to the conflict of laws provisions thereof.
29. JURISDICTION AND VENUE
Each party hereby irrevocably and unconditionally submits to the
jurisdiction of the United States District Court for the Southern
District of New York and any New York State court located in the
Borough of Manhattan in New York City and of any appellate court from
any thereof for the purposes of any legal suit, action or proceeding
arising out of or relating to this Agreement (a "Proceeding"). Each
party hereby irrevocably agrees that all claims in respect of any
Proceeding may be heard and determined in such Federal or New York
State court and irrevocably waives, to the fullest extent it may
effectively do so, any objection it may now or hereafter have to the
laying of venue of any Proceeding in any of the aforementioned courts
and the defense of an inconvenient forum to the maintenance of any
Proceeding.
30. WAIVER OF TRIAL BY JURY
EACH PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
31. ACCOUNT CONDITIONS
Each Account shall be subject to Chase's account conditions, as
in effect from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed on their behalf by duly authorized officers as of the
day and year first-above written.
THE CHASE MANHATTAN BANK DENTSPLY International Inc.
[Name of Issuer]
By: By:
Name: Name:
Title: Title:
Date: Date:
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