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Dated: 7 JUNE 20017 JUNE 2001
FMDCM/Y17007/HMH/PMS
Dealer Agreement
between
Harsco Finance B.V. (a private company with limited liability incorporated under
the laws of The Netherlands and with its statutory seat in Amsterdam, The
Netherlands)
as Issuer
Harsco Corporation
as Guarantor
The Royal Bank of Scotland plc
as Arranger
and
Citibank International plc, National Westminster Bank Plc and The Royal Bank of
Scotland plc
as Dealers
relating to
an EUR 250,000,000
Euro-Commercial Paper Programme
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CONTENTS
1. Interpretation............................................................................................1
2. Issue.....................................................................................................5
3. Representations and Warranties............................................................................8
4. Covenants and Agreements.................................................................................13
5. Indemnity................................................................................................13
6. Obligations of the Dealers...............................................................................16
7. Conditions Precedent.....................................................................................16
8. Termination and Appointment..............................................................................17
9. Communications...........................................................................................18
10. Counterparts.............................................................................................18
11. Third party rights.......................................................................................18
12. Governing Law, Submission to Jurisdiction and Service of Process.........................................19
SCHEDULE 1 : Conditions Precedent Documents......................................................................20
SCHEDULE 2 : Selling Restrictions................................................................................22
SCHEDULE 3 : Notification Letter for an increase in the Maximum Amount...........................................24
SCHEDULE 4 : Dealer Accession Letter.............................................................................26
SCHEDULE 5 : Programme Summary...................................................................................28
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THIS AGREEMENT is dated 7 June 2001 and made
BETWEEN:
(1) HARSCO FINANCE B.V., a private company with limited liability
incorporated under the laws of The Netherlands and with its statutory
seat in Amsterdam, The Netherlands in its capacity as an issuer of
Notes under the Programme (as defined below);
(2) HARSCO CORPORATION, in its capacity as the guarantor of the Notes under
the Programme;
(3) THE ROYAL BANK OF SCOTLAND PLC, as arranger (the "Arranger"); and
(4) CITIBANK INTERNATIONAL plc, NATIONAL WESTMINSTER BANK PLC AND THE ROYAL
BANK OF SCOTLAND PLC, (the "Dealers").
IT IS HEREBY AGREED as follows
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"Additional Dealer" means any institution appointed as a Dealer (either
generally or in respect of a single issue of Notes) in accordance with
clause 8.2.
"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.
"Agency Agreement" means the issue and paying agency agreement, dated
the date of this Agreement, between the Issuer, the Guarantor, and the
Issue Agent and Paying Agent providing for the issue of, and payment
under, the Notes (and as such agreement may be amended, restated or
replaced from time to time).
"Agreements" means this Agreement (as amended, restated or replaced
from time to time), any agreement for a Note Transaction, the
Guarantee, the Deed of Covenant and the Agency Agreement.
"Arranger" means The Royal Bank of Scotland plc.
"AU$", "AU Dollars" and "AUD" denote the lawful currency of Australia;
and "AUD Note" means a Note denominated in Australian Dollars.
"Clearing System" means Clearstream, Luxembourg, Euroclear or any other
recognised clearing system from time to time agreed in writing between
the Dealers and the Issuer.
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme or
any successor entity.
"Control" of any entity or person means ownership of a majority of the
voting power of such entity or person;
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"Dealers" means the institution or institutions specified as a Dealer
in the Programme Summary, together with any Additional Dealer(s) but
excluding any institution or institutions whose appointment has been
terminated under clause 8.1.
"Dealer Accession Letter" means a letter substantially in the form of
Schedule 4, delivered to the Additional Dealer in accordance with
clause 8.2
"Deed of Covenant" means a Deed of Covenant, dated the date of this
Agreement, executed by the Issuer in respect of Global Notes issued
under the Agency Agreement (and as such deed may be amended, restated
or replaced from time to time).
"Definitive Note" means a security printed Note in definitive form.
"Disclosure Documents" means, at any particular date:
(A) the Information Memorandum;
(B) the most recently published audited financial statements of
the Guarantor and any subsequent interim financial statements;
and
(C) any other document delivered by the Issuer or the Guarantor to
the Dealer(s) which the Issuer or the Guarantor has expressly
authorised to be distributed in connection with the
transactions contemplated by this Agreement.
"Dollars", "US$" and "U.S.$" denote the lawful currency of the United
States of America; and "Dollar Note" means a Note denominated in
Dollars.
"EUR Equivalent" means, on any day:
(A) in relation to any Euro Note, the principal amount of such
Note; and
(B) in relation to any Note denominated or to be denominated in
any currency other than the Euro, the amount of Euro which
would be required to purchase the principal amount of that
Note as expressed in such other currency at the spot rate of
exchange for the purchase of such other currency with Euro
quoted by the Issue Agent at or about 11.00am (London time) on
that day.
"Euro" and "EUR" denote the single currency of participating member
states of the European Union, as contemplated by the Treaty on European
Union and "Euro Note" means a Note denominated in Euro.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System or any successor entity.
"Global Note" means a bearer promissory Note in global form,
representing an issue of promissory notes of a like maturity which may
be issued by the Issuer under the Agency Agreement and which is
exchangeable with Definitive Notes subject to and in accordance with
its terms.
"Group" means, in relation to a person, that person and its
Subsidiaries.
"Guarantee" means the deed of guarantee executed by the Guarantor dated
7 June 2001 pursuant to which the Guarantor guarantees the Issuer's
obligations in respect of each
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Note and under the Deed of Covenant (and as such deed may be amended,
restated or replaced from time to time).
"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, the Guarantor and the Notes,
the text of which has been prepared by or on behalf of the Issuer and
the Guarantor for use by the Dealer(s) in connection with the
transactions contemplated by this Agreement.
"Issue Agent" and "Paying Agent" mean, respectively, the person or
persons specified as such in the Programme Summary and any successor
issue agent or, as the case may be, paying agent appointed in
accordance with the Agency Agreement.
"Issue Date" means, in relation to any Note, the date for the issue of
that Note as agreed between the Issuer and the relevant Dealer.
"Issuer" means Harsco Finance B.V., in its capacity as the issuer of
Notes pursuant to this Agreement and the Agency Agreement.
"Maturity Date" means, in relation to any Note, the date of maturity of
that Note in accordance with the terms of that Note.
"Maximum Amount" means the maximum amount of Notes which, when
aggregated with the Notes for the time being outstanding under the
Programme, are permitted to be outstanding, being at the date hereof
EUR 250,000,000 (or its equivalent in other currencies).
"Note" means a bearer promissory note of the Issuer purchased or to be
purchased by a Dealer under this Agreement, in global or definitive
form, in the respective forms set out in Schedule 1 to the Agency
Agreement or such other form as may be agreed from time to time between
the Issuer, the Guarantor, that Dealer, the Issue Agent and the Paying
Agent and, unless the context otherwise requires, the promissory notes
represented by the Global Notes.
"Notices" means the Bank of England Notice dated 18 March 1997 entitled
"The Banking ▇▇▇ ▇▇▇▇ (Exempt Transactions) Regulations 1997 and issues
of Commercial Paper" and "Explanatory Memorandum - Issues of Commercial
Paper and Debt Securities of one year or over under The Banking ▇▇▇
▇▇▇▇ (Exempt Transactions) Regulations 1997" respectively and, in each
case, relating to the Regulations (as the same may be amended and/or
replaced from time to time).
"Note Transaction" means the sale by the Issuer and the purchase by a
Dealer of Notes in accordance with clause 2.
"Programme" means the uncommitted euro-commercial paper programme to be
managed by the Dealers for the Issuer and established by the
Agreements.
"Programme Summary" means the programme summary set out in schedule 5,
as such summary may be amended or superseded from time to time.
"Regulations" means The Banking Act (Exempt Transactions) 1997 which
came into force on 3 April 1997 (as the same may be amended, varied or
replaced from time to time).
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"relevant jurisdiction" means any one or more of the United Kingdom,
the jurisdiction of incorporation of the Issuer and the Guarantor, any
jurisdiction from or through which any payment under or in respect of
any Note or any Agreement may be made and any jurisdiction in which the
Issuer or the Guarantor is or becomes subject to taxes generally.
"Relevant Notes" means any Notes the purchase price or issue proceeds
in respect of which are accepted by the Issuer in the United Kingdom
and shall include, without limitation, Sterling Notes where the context
so admits.
"Relevant Party" means, in relation to a person, any director, officer,
employee, affiliate or agent of such person.
"Securities Act" means the United States Securities Act of 1933 (as
amended from time to time);
"Sterling" and "L" 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) CONTROL: who the first person controls or has the power to
control, directly or indirectly, through the ownership of
voting securities entitling it to elect a majority of the
members of the governing body of the second person or
otherwise; or
(B) CONSOLIDATION: whose financial statements are, in accordance
with applicable law and generally accepted accounting
principles, consolidated with those of the first person.
"Swiss Francs" and "CHF" denote the lawful currency of Switzerland; and
"CHF Note" means a Note denominated in Swiss Francs.
"Third Party" means any person other than a member of the Group.
"Treaty on European Union" means the Treaty of Rome of 25 March 1957,
as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty
(which was signed at Maastricht on 07 February, 1992 and came into
force on 01 November 1993) as amended from time to time.
"Yen" and "Y" denote the lawful currency of Japan; and "Yen Note" means
a Note denominated in Yen.
1.2 CONSTRUCTION
(A) In this Agreement, unless the contrary intention appears, a
reference to:
(1) a provision of a law is a reference to that
provision as amended or re-enacted;
(2) a clause or a schedule is a reference to a clause of
or a schedule to this Agreement;
(3) a person includes any individual, company, body
corporate, corporation sole or aggregate, government,
state or agency of a state, firm, partnership, joint
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venture, association, organisation or trust (in each
case, whether or not having separate legal
personality and irrespective of the jurisdiction in
or under the law of which it was incorporated or
exists) and references to any person shall include
its respective successors and assigns; and
(4) this Agreement or any of the other Agreements or
other documents is a reference to that Agreement or
that other document as amended, novated, restated or
supplemented from time to time.
(B) The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this
Agreement.
(C) Words denoting the singular number only shall include the
plural number also and vice versa and words denoting one
gender only shall include the other gender.
(D) Any terms not expressly defined in clause 1.1 shall have the
meanings set out in the Programme Summary.
2. ISSUE
2.1 THE PROGRAMME
The Programme is uncommitted. Accordingly, the Issuer shall not be
under any obligation to issue and sell any Notes, and the Dealers shall
not be under any obligation to purchase or procure the purchase of any
Notes, until such time as an agreement for a Note Transaction has been
reached.
2.2 ISSUE OF NOTES
(A) Subject to the terms of this Agreement, the Issuer may issue
and sell Notes to the Dealers from time to time at such prices
and upon such terms as the Issuer and the relevant Dealer may
agree. The Issuer acknowledges that the Dealers may resell
Notes purchased by such Dealers.
(B) Each issue of Notes will be of an aggregate principal amount
as may be agreed between the Issuer and the relevant Dealer
and each Note issued will be represented initially by one or
more Global Notes or, in the case of Sterling Notes, may be
represented by Definitive Notes in the denominations stated in
the Programme Summary or (in the case of Global Notes) an
integral multiple thereof. Sterling Global Notes will be
exchangeable, in accordance with their terms, for Sterling
Definitive Notes upon request, upon a default by the Issuer or
if Euroclear or Clearstream, Luxembourg or any other Clearing
System is closed for a continuous period of 14 days or more
(other than by reason of weekends or public holidays,
statutory or otherwise) or if Euroclear or Clearstream,
Luxembourg or any other Clearing System announces an intention
to cease permanently to do business or does in fact
permanently so cease to do business. Global Notes issued in
any other currency pursuant to this Agreement will be
exchangeable, in accordance with their terms, for Definitive
Notes denominated in that currency only upon default by the
Issuer or if Euroclear or Clearstream, Luxembourg or any other
Clearing System is closed for a continuous period of 14 days
or more (other than by reason of weekends or public holidays,
statutory or otherwise) or if Euroclear or Clearstream,
Luxembourg or any other Clearing System announces an intention
to cease permanently to do business or does in fact
permanently so cease to do business.
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(C) 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 (and including) the Issue Date to (but
excluding) the Maturity Date of that Note.
(D) Definitive Notes (if any) shall be issued in the denominations
specified in the Programme Summary.
(E) In addition to the requirements of this clause 2.2 above and
subject to clause 2.5 below:
(1) Notes to be denominated in Sterling will be issued in
denominations of at least L100,000 and Relevant Notes
to be denominated in any currency other than Sterling
will be issued in denominations of at least the
amount calculated by the Issue Agent to be the
equivalent of L100,000 in the relevant currency on
the basis of the spot rate of exchange for the
purchase of the relevant currency with Sterling
quoted by the Issue Agent at or about 11.00 am
(London time) on the Issue Date; and
(2) the terms of any Global Note to be denominated in
Sterling will be such that interests therein will be
transferable in a minimum amount of L100,000 or an
integral multiple thereof and the terms of any
Relevant Notes to be denominated in any currency
other than Sterling will be such that interests
therein will be transferable in an amount calculated
by the Issue Agent to be at least the equivalent of
L100,000 in the relevant currency on the basis of the
spot rate of exchange for the purchase of the
relevant currency with Sterling quoted by the Issue
Agent at or about 11.00 am (London time) on the Issue
Date thereof.
2.3 AGREEMENT FOR NOTE TRANSACTIONS
Subject as provided in this Agreement, and in particular (but without
limitation) in clause 2.2 above, if the Issuer and any Dealer shall
agree on the terms of the purchase of any Note by that Dealer
(including agreement with respect to the Issue Date, aggregate
principal amount, denomination, currency, purchase price, Maturity
Date, interest rate and discount, and, in the case of Sterling Notes
only, whether that Note will be a Definitive Note or a Global Note),
then:
(A) the Issuer shall cause such Note to be issued and delivered in
accordance with the terms of the Agency Agreement;
(B) the relevant Dealer shall cause the purchase price of such
Note to be paid on the date of issue:
(1) 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 funds as at
the time shall be customary for the settlement in New
York City of international banking transactions
denominated in Dollars) to the account in New York as
the Issue Agent shall from time to time have
specified for this purpose; or
(2) in the case of a Sterling Note, by transfer of
same-day funds to the Sterling account in the City of
London as the Issue Agent shall from time to time
have specified for this purpose; or
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(3) in the case of a Euro Note, by transfer of 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
(4) in all other cases by transfer of freely transferable
same-day funds in the relevant currency to the
account of the Issue Agent at the bank in the
principal domestic financial centre for such currency
as the Issue Agent may from time to time have
specified for this purpose; and
(C) the relevant Dealer shall notify the Issue Agent of the
delivery instructions applicable to such Note in accordance
with prevailing market practice and in sufficient time to
enable the Issue Agent to deliver such Note (or make the same
available for collection) on its Issue Date.
2.4 FAILURE TO ISSUE
If, for any reason (including, without limitation, the failure of the
relevant trade), a Note in a Note Transaction is not to be issued, the
Issuer and the relevant Dealer shall immediately notify the Issue Agent
of that failure.
2.5 OPTIONAL CURRENCIES
Any Note Transaction or agreement therefor in respect of a Note
denominated in a currency other than Euro, Dollars, Sterling, Swiss
Francs, Yen or Australian Dollars shall be conditional upon:
(A) 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;
(B) such other currency being freely transferable and freely
convertible into Euro; and
(C) any appropriate amendments which the relevant Dealer or the
Issuer shall require having been made to this Agreement and/or
the Agency Agreement.
2.6 INCREASE IN MAXIMUM AMOUNT
The Issuer and the Guarantor may from time to time increase the Maximum
Amount by:
(A) giving at least ten days' notice by letter in substantially
the form of Schedule 3 to each Dealer and to the Issue Agent
and the Paying Agent; and
(B) delivering to each Dealer the documents referred to in that
letter, in each case in form and substance acceptable to each
Dealer.
2.7 FLOATING RATE INTEREST NOTES
(A) If Floating Rate Interest Notes are to be issued, a person
(being a reputable bank or other financial institution
experienced in acting as calculation agent, which may be a
Dealer) agreed between the Issuer and the Dealers will be
appointed as the calculation agent in respect of such Floating
Rate Interest Notes.
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(B) If a Dealer or any other nominated person is to be the
calculation agent, its appointment as such shall be on
substantially the terms of the form of agreement set out in
Schedule 3 to the Agency Agreement, but with such amendments
as the Dealer and the Issuer shall agree.
(C) If the Agent is to be the calculation agent, its appointment
as such shall be on the terms set out in schedule 3 to the
Agency Agreement.
3. REPRESENTATIONS AND WARRANTIES
3.1 The Issuer (in respect of itself) and the Guarantor (in respect of
itself and the Issuer) make the following representations and
warranties in this Clause 3 to each Dealer:
(A) ISSUER INCORPORATION:
that the Issuer has been duly incorporated and is an existing
corporation in good standing under the laws of The
Netherlands, has full power and authority (corporate and
other) to conduct its business as described in the Disclosure
Documents and is duly qualified to do business in each
jurisdiction in which it owns or leases real property or in
which the conduct of its business requires such qualification
except where the failure to be so qualified, considering all
such cases in the aggregate, does not involve a material risk
to the business, properties, financial position, or results of
operations of the Issuer;
(B) GUARANTOR INCORPORATION:
that the Guarantor and each of its Subsidiaries has been duly
incorporated and is an existing corporation in good standing
under the laws of the State of Delaware, has full power and
authority (corporate and other) to conduct its business as
described in the Disclosure Documents and is duly qualified to
do business in each jurisdiction in which it owns or leases
real property or in which the conduct of its business requires
such qualification except where the failure to be so
qualified, considering all such cases in the aggregate, does
not involve a material risk to the business, properties,
consolidated financial position, or consolidated results or
operations of the Guarantor and its Subsidiaries; and all of
the outstanding shares of capital stock of each such
Subsidiary have been duly authorised and validly issued, are
fully paid and non-assessable and (except as otherwise stated
in the Information Memorandum) are beneficially owned,
directly or indirectly, by the Guarantor subject to no
security interests, other encumbrance or adverse claim;
(C) NO BREACH, APPROVALS, CAPACITY AND AUTHORISATION:
that (i) the creation and issue of Notes by the Issuer, the
giving of the Guarantee by the Guarantor, the execution of
this Agreement and the Agency Agreement by the Issuer and the
Guarantor and the execution of the Deed of Covenant by the
Issuer and the consummation of the transactions herein and
therein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, the laws of The Netherlands or of the United States of
America, any statute, any agreement or instrument to which the
Issuer or the Guarantor is a party or by which the Issuer or
the Guarantor is bound or to which any of the property of the
Issuer or the Guarantor is subject, the Issuer's or the
Guarantor's constitutive documents, or any order, rule, or
regulation of any court or governmental agency or body having
jurisdiction over the Issuer or the Guarantor or any of their
respective properties; (ii) no consent, approval,
authorisation, or
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order of, or filing with, any court or governmental agency or
body is required for the creation and issue of the Notes, the
execution of this Agreement or the Agency Agreement by the
Issuer and the Guarantor, the execution of the Guarantee by
the Guarantor and the execution of the Deed of Covenant by the
Issuer, the consummation of the transactions contemplated by
this Agreement, the Guarantee, the Deed of Covenant or the
Agency Agreement (except such as may be required under the
Securities Act or state securities laws of the United States
of America) and any consents, approvals and authorisations
required for the distribution of the Disclosure Documents in
accordance with the provisions set out in Schedule 2 to this
Agreement have been obtained and are in full force and effect;
and (iii) the Issuer has full power and capacity to create and
issue the Notes, to execute this Agreement, the Agency
Agreement and the Deed of Covenant and to undertake and
perform the obligations expressed to be assumed by it herein
and therein, and the Issuer has taken all necessary action to
approve and authorise the same and the Guarantor has full
power and capacity to give the Guarantee, to execute this
Agreement, the Agency Agreement and the Guarantee and to
undertake and perform the obligations expressed to be assumed
by it herein and therein, and the Guarantor has taken all
necessary action to approve and authorise the same;
(D) LEGAL, VALID, BINDING AND ENFORCEABLE:
(i) that this Agreement constitutes and, upon due execution by
or on behalf of the Issuer and (in the case of the Notes) due
authentication and delivery, each of the Agency Agreement, the
Deed of Covenant and the Notes will constitute, valid and
legally binding obligations of the Issuer, enforceable in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganisation,
moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general equitable
principles and (ii) that this Agreement constitutes and upon
due execution by or on behalf of the Guarantor, each of this
Agreement, the Agency Agreement and the Guarantee will
constitute, valid and legally binding obligations of the
Guarantor enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganisation, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
to general equitable principles;
(E) STATUS:
that each of the Notes and the Guarantee will constitute
direct, general and unconditional obligations of the Issuer
and the Guarantor, respectively which (a) rank pari passu
among themselves and (b) will at all times rank at least pari
passu with all other present and future unsecured and
unsubordinated obligations of or guarantees by the Issuer and
the Guarantor, respectively, save for such obligations as may
be preferred by provisions of law that are both mandatory and
of general application;
(F) TAXATION:
that all payments of principal and interest in respect of the
Notes by the Issuer, all payments by the Issuer under the Deed
of Covenant and all payments by the Guarantor in respect of
the Guarantee and all payments by the Issuer and the Guarantor
under this Agreement and the Agency Agreement, may be made
free and clear of, and without withholding or deduction for,
any taxes, duties, assessments or governmental charges of
whatsoever nature imposed, levied, collected, withheld or
assessed by The Netherlands or the United States of
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America, respectively, or any political subdivision or
authority thereof or therein having power to tax;
(G) ACCURACY OF DISCLOSURE DOCUMENTS:
that the Disclosure Documents contain all information which is
(in the context of the issue of the Notes) material; such
information is true and accurate in all material respects and
is not misleading in any material respect; any opinions,
predictions or intentions expressed in the Disclosure
Documents are honestly held or made and are not misleading in
any material respect; the Disclosure Documents do not omit to
state any material fact necessary to make such information,
opinions, predictions or intentions (in such context) not
misleading in any material respect; and all proper enquiries
have been made by the Issuer and the Guarantor to ascertain or
verify the foregoing;
(H) FINANCIAL STATEMENTS:
that the financial statements of the Guarantor and its
respective Subsidiaries included in the Disclosure Documents
fairly present the financial condition of the Guarantor and
its respective Subsidiaries in each case as of the dates
indicated and the results of the operations and cash flows for
the periods therein specified in conformity with generally
accepted accounting principles in the United States of
America, respectively, consistently applied throughout the
periods involved (except as otherwise stated therein);
(I) COMPLETENESS OF DISCLOSURE DOCUMENTS:
that the Disclosure Documents contain all such information as
investors and their professional advisers would reasonably
require, and reasonably expect to find there, for the purpose
of making an informed assessment of the assets and
liabilities, financial position, profits and losses, and
prospects of the Issuer and of the rights attaching to the
Notes and of the Guarantor and the rights attaching to the
Guarantee;
(J) ABSENCE OF LITIGATION:
that except as disclosed in note 10 of the audited annual
consolidated financial statements of the Guarantor included in
the Guarantor's Form 10-K dated March 19, 2001, and in the
notes to the unaudited quarterly financial statements of the
Guarantor included in the Guarantor's Form 10-Q dated May 15,
2001, which forms were filed with the U.S. Securities and
Exchange Commission, there are no litigation or arbitration
proceedings against or affecting the Issuer or the Guarantor
or any of their respective Subsidiaries or any of their
respective assets or revenues, nor is the Issuer or the
Guarantor aware of any pending or threatened proceedings of
such kind, which are or might be material in the context of
the issue of the Notes or of the giving of the guarantee;
(K) NO MATERIAL ADVERSE CHANGE:
that subsequent to the respective dates as of which
information is given in the Disclosure Documents, neither the
Issuer nor the Guarantor (nor any of their respective
Subsidiaries) has incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in
the ordinary course of business, that are material (in the
case of the Issuer) to the Issuer or (in the case of the
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Guarantor and its Subsidiaries) to the Guarantor and its
Subsidiaries taken as a whole and there has not been any
material change in the capital stock or short-term debt and
long-term debt of the Issuer or of the Guarantor or its
Subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change,
in the condition (financial or other), business, prospects,
net worth, or results of operations of the Issuer, or of the
Guarantor and its Subsidiaries considered as a whole;
(L) U.S. TREASURY REGULATIONS:
that the Notes will be issued under the provisions of U.S.
Treasury Regulations section 1.163-5(c)(2)(1)(D) (the "D
RULES") and the Issuer will not offer or sell the Notes in the
United States or its possessions or to United States persons
(terms used in this paragraph have the meanings given to them
by the U.S. Internal Revenue Code of 1986, as amended, and
regulations thereunder, including the D Rules);
(M) REGULATION D:
that neither the Issuer, nor the Guarantor, nor any of their
respective affiliates (as defined in Rule 501(b) of Regulation
D under the Securities Act) has directly, or through any
agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as defined
in the Securities Act) which is or will be integrated with the
sale of the Notes in a manner what would require the
registration under the Securities Act of the offering
contemplated by the Disclosure Documents or engaged in any
form of general solicitation or general advertising in
connection with the offering of the Notes;
(N) REGULATION S:
that none of the Issuer, the Guarantor or any affiliate,
either of them or any person acting on its or their behalf has
engaged or will engage in any directed selling efforts (as
defined in Regulation S under the Securities Act) with respect
to the Notes and it and they have complied and will comply
with the offering restrictions requirement of Regulation S
under the Securities Act;
(O) U.S. INVESTMENT COMPANY ACT:
that neither the Issuer nor the Guarantor is an "investment
company" or an entity "controlled" by an "investment company"
as such terms are defined in the United States Investment
Company Act of 1940, as amended and that it is not necessary
in connection with the offer, sale and delivery of the Notes
in the manner contemplated by this Agreement to register the
Notes under the Securities Act;
(P) (1) that no present or future indebtedness of the Issuer, the
Guarantor or any of their respective Subsidiaries has
become due and payable prior to its stated maturity by
reason of a default (howsoever described) otherwise
than at the option of the Issuer, the Guarantor
relevant Subsidiaries, as the case may be; and
(2) that no present or future indebtedness of the Issuer, the
Guarantor or any Subsidiary has not been paid when due
or (as the case may be) within any applicable grace
period originally provided therefor; and
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(3) that none of the Issuer, the Guarantor or any of their
respective Subsidiaries has failed to pay when due or
(as the case may be) within any applicable grace period
originally provided therefor any amount payable by it
under any present or future guarantee (other than a
guarantee issued in the ordinary course of business and
relating to indebtedness of less than U.S.$20,000,000 in
aggregate) or indemnity in respect of any present or
future indebtedness in respect of which demand has been
made therefor (unless the giver of the guarantee or
indemnity is contesting in good faith its liability
thereunder); and
(4) that no mortgage, charge, pledge, lien or other
encumbrance present or future securing any present or
future indebtedness, guarantee or indemnity created or
assumed by the Issuer, the Guarantor or any Subsidiary
has become enforceable (and the holder thereof has
taken steps to enforce the same),
such that (for the purpose of sub-paragraphs (1) to (4)
above) the aggregate of the principal amounts of all such
indebtedness of the Issuer, the Guarantor and all their
respective Subsidiaries (taken together) of either of them
and the amounts payable by the Issuer, the Guarantor and all
Subsidiaries (taken together) either of them under any such
guarantee and/or indemnity exceeds U.S.$20,000,000 (or its
equivalent in any other currency or currencies).
3.2 MAXIMUM AMOUNT
The aggregate outstanding principal amount of the 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 under
Clause 2.6). The principal amount outstanding in relation to any Note
denominated or to be denominated in a currency other than Dollars will
be calculated by taking the Dollar Equivalent of that principal amount
as at the date of calculation.
3.3 STERLING NOTES AND OTHER RELEVANT NOTES
In relation to any issue of Sterling Notes and any other Relevant Notes
the Issuer is, or will be prior to the date on which the first Sterling
Notes or Relevant Notes are issued pursuant to this Agreement, eligible
to issue commercial paper under the legal and regulatory requirements
(including, without limitation, the Regulations, the Notices and any
other requirements or guidelines of the Bank of England) in or of the
United Kingdom from time to time applicable thereto, and has complied
with all such requirements and each such Note will be issued in
compliance with those requirements.
3.4 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Clause 3:
(A) are made on the date of this Agreement; and
(B) are deemed to be repeated on each date upon which a Note
Transaction is agreed and each date upon which Notes are, or
are to be, issued.
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4. COVENANTS AND AGREEMENTS
4.1 DURATION
The undertakings in this clause 4 remain in force from the date of this
Agreement for so long as any amount is or may be outstanding under the
Agreements.
4.2 INFORMATION
Whenever the Issuer or the Guarantor shall publish or make available to
its shareholders or to the public (by filing with any regulatory
authority, securities exchange or otherwise) any information which
could reasonably be expected to be material in the context of this
Agreement, the Notes, the Guarantee and the transactions contemplated
hereby and thereby, the Issuer or the Guarantor (as appropriate) shall:
(A) notify each Dealer as to the nature of such information;
(B) make a reasonable number of copies of such information
available to each Dealer upon request to permit distribution
to investors and prospective investors; and
(C) take such action as may be necessary to ensure that the
representation and warranty contained in clause 3.1(G) is true
and accurate on the dates when it is made as contemplated by
clause 3.
5. INDEMNITY
5.1 Without prejudice to the other rights or remedies of the Dealers, each
of the Issuer and the Guarantor (each an "indemnifying person")
undertakes with the Dealers and each of them that, if that Dealer or
any Relevant Party relating to such Dealer incurs any losses,
liabilities, claims, actions or demands which it may incur or which may
be made against it as a result of or in relation to:
(A) any failure by the Issuer to issue on the agreed Issue Date
any Notes which a Dealer has agreed to purchase; or
(B) any breach or alleged breach of any of the representations,
warranties, covenants, agreements or undertakings made by the
Issuer or by the Guarantor in this Agreement or any materially
untrue statement or alleged materially 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 on which they were made, not
misleading in any material respect,
the Issuer (or as the case may be), the Guarantor shall pay to such
Dealer an amount equal to any such losses, liabilities, claims, actions
or demands and the indemnity shall extend to include all costs, charges
and expenses (including legal expenses) which that Relevant Party may
pay or incur in investigating, disputing or defending any claim or
action in respect of which an indemnity may be sought against the
Issuer or the Guarantor under this clause.
The liability of the Issuer and of the Guarantor under the foregoing
indemnity includes (without limitation) any loss or expense arising
directly on account of funds borrowed, contracted for or utilised by
the Relevant Party to fund any amount payable under the Notes and not
received in breach of this Agreement.
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5.2 In case any action shall be brought against any Relevant Party in
respect of which an indemnity may be sought from an indemnifying
person, the relevant Dealer shall promptly notify the indemnifying
person in writing and the indemnifying person shall have the option to
assume the defence thereof and to retain lawyers reasonably
satisfactory to the Relevant Party in which case the indemnifying
person shall be liable to pay the fees and expenses of such lawyers
relating to such proceedings.
5.3 In any such proceedings, the Relevant Party shall have the right to
retain its own lawyers, but the fees and expenses of such lawyers shall
be at the expense of the indemnified person unless:
(A) the Relevant Party has defences additional to or different
from the indemnifying person; or
(B) the indemnifying person and the Relevant Party have mutually
agreed to the retention of such lawyers; or
(C) the indemnifying person has failed to employ legal advisers
reasonably satisfactory to the Relevant Party within a
reasonable period of time after notice by the indemnified
person of the commencement of such proceedings.
5.4 Subject as set out in clause 5.3 above, in no event shall the
indemnifying person be liable for the fees and expenses of more than
one legal adviser or firm of legal advisers of any Relevant Party in
any jurisdiction in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the
same general allegation or circumstances.
5.5 The indemnifying person shall not be liable to indemnify any Relevant
Party for any settlement of any proceeding effected without the
authority and written consent of the indemnifying person (which consent
shall not be unreasonably withheld or delayed).
5.6 COSTS AND EXPENSES
The Issuer, failing which the Guarantor, will:
(A) pay, or reimburse the Arranger for, all reasonable
out-of-pocket costs and expenses (including, without
limitation, United Kingdom value added tax and any other taxes
or duties and fees and disbursements of counsel to the
Arranger) incurred by the Arranger in connection with the
preparation, negotiation, printing, execution and delivery of
the Agreements, all documents contemplated by the Agreements
and the Notes;
(B) pay, or reimburse each Dealer for, all reasonable
out-of-pocket costs and expenses (including, without
limitation, United Kingdom value added tax and any other taxes
or duties and fees and disbursements of counsel to such
Dealer) incurred by that Dealer in connection with the
enforcement or protection of its rights under this Agreement,
all documents contemplated by this Agreement, the Notes, any
Note Transaction, the Deed of Covenant and the Guarantee; and
(C) pay any stamp duty or other taxes (including, without
limitation, any penalties and interest in respect thereof)
payable in The Netherlands, the United States of America, the
United Kingdom, Belgium, Luxembourg and any jurisdiction in
which the Issuer is or becomes subject to taxes in connection
with the execution, delivery
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and performance of this Agreement, any Note Transaction, the
Deed of Covenant, the Agency Agreement, the Guarantee or any
Notes.
5.7 CHANGES TO THE PROGRAMME
(A) The Issuer, failing which the Guarantor, will notify each
Dealer of:
(1) any change in the Issue Agent and/or the Paying Agent
or any change in any of the offices of such Issue
Agent and/or such Paying Agent; and
(2) any material change or amendment to or termination of
the Agency Agreement, the Guarantee or the Deed of
Covenant,
in any case not later than ten days prior to the making of any
such change, amendment or termination.
(B) Neither the Issuer nor the Guarantor will permit to become
effective any such change, amendment or termination as
referred to in Clause 5.7(A) above which could reasonably be
expected to affect adversely the interests of any Dealer or
the holder of any Notes then outstanding.
5.8 CONTINUING OBLIGATIONS
The Issuer and the Guarantor will 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 Notes
shall be fully observed and complied with, and in particular (but
without limitation):
(A) that the monitoring requirements set out in paragraph 9(i) of
the Notice issued by the Bank of England on 18 March 1997 as
the same may be amended or superseded from time to time shall
be fully observed and complied with; and
(B) in respect of Yen Notes, subject to clause 5.10, the Issuer
and the Guarantor will 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 within the
applicable time period.
5.9 U.S. SELLING RESTRICTIONS
Each of the Issuer and the Guarantor represents, warrants and agrees
that neither it, nor any of its affiliates, nor any person acting on
its behalf or on behalf of any of its affiliates has engaged or will
engage in any directed selling efforts with respect to the Notes, and
that it and its affiliates have complied and will comply with the
offering restrictions requirement of Regulation S. Terms used in this
clause 5.9 have the meanings given to them by Regulation S under the
U.S. Securities Act of 1933, as amended.
5.10 YEN NOTES
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
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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.
6. OBLIGATIONS OF THE DEALERS
6.1 SELLING RESTRICTIONS
Each Dealer represents, covenants and agrees that it has complied and
will comply with the selling restrictions set out in schedule 2.
Subject to those restrictions, each Dealer is authorised by the Issuer
and the Guarantor to circulate the Disclosure Documents or any other
publicly available information in relation to the Issuer or the
Guarantor to purchasers or potential purchasers of the Notes.
6.2 OBLIGATIONS SEVERAL
The representations, warranties, agreements and obligations of each
Dealer under this Agreement are several.
6.3 ARRANGER'S CAPACITY
Each of the Dealers 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 Notes.
7. CONDITIONS PRECEDENT
7.1 CONDITIONS PRECEDENT
(A) At least three business days (being a day (other than a
Saturday or Sunday) on which banks are open for business in
London) before the date upon which the Issuer and any Dealer
shall first agree terms for a Note Transaction, the Issuer and
the Guarantor jointly and severally covenant and agree with
the Dealers that they shall deliver to the relevant Dealer
each of the documents listed in schedule 1, in form and
substance satisfactory to such Dealer.
(B) Any Dealer may at its discretion waive compliance with the
obligation of the Issuer to deliver any document under clause
7.1(A) above, and any document so waived shall be deemed to
have been satisfied for that Dealer only.
7.2 FURTHER CONDITIONS PRECEDENT
The obligations of any Dealer in respect of any agreement for a Note
Transaction shall be conditional upon:
(A) the representations and warranties of the Issuer and the
Guarantor contained in clause 3 being true and correct:
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(1) on each date upon which an agreement for a Note
Transaction is made; and
(2) on each date on which Notes are issued,
by reference to the facts and circumstances then subsisting;
and
(B) there being no material breach as at the relevant Issue Date
in the performance of the obligations of the Issuer or the
Guarantor under any of the Agreements (including, without
limitation, under the Guarantee) or any Note.
8. TERMINATION AND APPOINTMENT
8.1 TERMINATION
The Issuer and the Guarantor (acting together) may terminate the
appointment of the Arranger or any Dealer, and the Arranger or any
Dealer may resign, on not less than thirty days' written notice to the
Arranger, the relevant Dealer or the Issuer and the Guarantor, as the
case may be. The other Dealer(s), the Issue Agent and the Paying Agent
will be promptly informed by the Issuer of such termination or
resignation. The rights and obligations of each party to this Agreement
shall not terminate in respect of any rights or obligations accrued or
incurred before the date on which such termination or resignation takes
effect or which shall accrue thereafter in respect of any act or
omission which occurred prior to such date and the provisions of
clauses 5.1 to 5.7 inclusive shall survive termination of this
Agreement or termination of the appointment of the Arranger or any
Dealer or resignation of the Arranger or any Dealer and delivery
against payment for any of the Notes.
8.2 APPOINTMENT OF DEALERS
(A) The Issuer and the Guarantor (acting together) may appoint one
or more Additional Dealers upon the terms of this Agreement
(either generally or in respect of a single issue of Notes) by
sending to the Additional Dealer a Dealer Accession Letter
substantially in the form set out in schedule 4. The
appointment will only become effective if the Additional
Dealer confirms acceptance of its appointment to the Issuer
and the Guarantor in or substantially in the form of the
acceptance set out in the Dealer Accession Letter.
(B) The Additional Dealer shall, subject to the proviso set out
below in the case of an Additional Dealer appointed in respect
of a single issue of Notes, become a party to this Agreement
on the later of:
(1) the date that the Issuer and the Guarantor (and if
received on different dates by the Issuer and the
Guarantor, on the later of such dates) receive the
confirmation in clause 8.2(A) above; and
(2) the date specified in the Dealer Accession Letter as
the date of appointment,
and the Additional Dealer shall then be vested with all the
authority, rights, powers, duties and obligations as if
originally named as a Dealer under this Agreement, provided
that, in the case of an Additional Dealer appointed in respect
of a single issue of Notes, following the issue of the
relevant Global Note or Definitive Notes, the relevant
Additional Dealer shall have no further such authority,
rights, duties or obligations except such as may have accrued
or been incurred prior to, or in
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connection with, the issue of such Global Note (and the Notes
represented thereby) or such Definitive Notes.
(C) The Issuer and the Guarantor shall, in the case of an
Additional Dealer appointed generally to the Programme,
promptly notify the Issue Agent and the Paying Agent and the
other Dealer(s) of any such appointment. No such notification
shall be required to be given in the case of the appointment
of an Additional Dealer in respect of a single issue
of Notes.
(D) Without prejudice to the foregoing provisions of this
Clause 8.2, the Issuer and the Guarantor agree that if, at
any time, a 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 such 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 the Guarantor 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 such original Dealer shall be deemed to be
references to such affiliate. A Dealer shall, as soon as
reasonably possible, give notice of any such transfer as is
referred to in this Clause 8.2(D) to the Issuer and the
Guarantor.
9. COMMUNICATIONS
9.1 Each communication to be made under this Agreement shall, unless
otherwise agreed between the relevant parties, be made by facsimile,
letter or telephone (in the case of a communication by telephone, to be
confirmed promptly by facsimile or letter).
9.2 Any communication (unless made by facsimile or telephone) shall be made
to the intended recipient and marked for the attention of the person,
or any one of them, at the relevant address specified in the Programme
Summary or otherwise from time to time designated by that party to the
other parties hereto for the purpose of this Agreement and shall be
deemed to have been made upon delivery (in the case of any
communication made by letter).
9.3 Any communication to be made by facsimile or telephone shall be made to
the intended recipient at the relevant facsimile or telephone number
specified in the Programme Summary or otherwise from time to time
designated by that party to the other parties hereto for the purpose of
this Agreement and shall be deemed to have been received when made (in
the case of any communication by telephone) or (in the case of any
communication by facsimile) when transmission of that telefax
communication has been completed.
10. COUNTERPARTS
This Agreement may be signed in counterparts, all of which when taken
together shall constitute a single agreement.
11. THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement, but this does not affect any right or remedy of a third
party that exists or is available apart from that Act.
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12. GOVERNING LAW, SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS
12.1 GOVERNING LAW
This Agreement, any agreement for a Note Transaction and the Notes
shall be governed by, and construed in accordance with, English law.
12.2 SUBMISSION TO JURISDICTION
For the benefit of the Dealers, each of the Issuer and the Guarantor
irrevocably agrees:
(A) that the courts of England are to have jurisdiction to settle
any disputes which may arise out of or in connection with this
Agreement, any agreement for a Note Transaction or the Notes
and that accordingly any suit, action or proceedings (together
"PROCEEDINGS") so arising may be brought in such courts;
(B) to waive any sovereign or other immunity to which it or its
assets may now or after the date of this Agreement be
entitled, and any objection which it may now or hereafter have
to the laying of the venue of any Proceedings in such courts
and any claim that such Proceedings have been brought in an
inconvenient or inappropriate forum; and
(C) that a judgment in any Proceedings brought in the English
courts may be enforced in the courts of any other
jurisdiction.
Nothing in this Agreement shall limit the right of any Dealer to take
Proceedings in any other court of competent jurisdiction. The taking of
Proceedings in any one or more jurisdictions shall not preclude the
taking of Proceedings in any other jurisdiction, whether concurrently
or not.
12.3 SERVICE OF PROCESS
The Issuer and the Guarantor each hereby irrevocably appoints Heckett
MultiServ PLC whose address at the date hereof is specified in the
Programme Summary as its agent to accept service of process in any
Proceedings in England in connection with this Agreement. If for any
reason the agent for service of process ceases to be so appointed or
shall otherwise cease to act as agent for service of process, the
Issuer and the Guarantor each hereby irrevocably agrees promptly to
appoint another agent in England to accept service of process
acceptable to each Dealer and to notify the Dealers of the appointment
or, if the Issuer, or Guarantor fails to appoint another agent in
England to accept service of process within 15 days, any Dealer Account
Holder shall be entitled to appoint such person by written notice to
the Issuer or the Guarantor (as the case may be). Nothing in this
Agreement shall affect or restrict the right of any party to serve
process on the Issuer or the Guarantor in any other manner permitted by
law.
IN WITNESS whereof the parties hereto have executed this Agreement on the date
which appears first on page 1.
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SCHEDULE 1: CONDITIONS PRECEDENT DOCUMENTS
1. A certified copy of the Issuer's and the Guarantor's constitutional
documents.
2. Certified copies of all board, management or other resolutions and
other documents evidencing the internal authorisations and approvals
required to be granted by each of the Issuer and the Guarantor in
connection with the Programme and the Agreements to which it is a party
and (in the case of the Issuer) the Notes.
3. Certified copies of any governmental or other consents or filings
required by the Issuer or the Guarantor (as the case may be) in
connection with the Programme including (without limitation) a copy of
the notification sent to the Bank of England of the establishment of
the Programme.
4. Certified copies of:
(A) this Agreement, as executed;
(B) the Agency Agreement, as executed;
(C) the Deed of Covenant, as executed;
(D) the Guarantee, as executed; and
(E) written confirmation of the acceptance of appointment from the
agent for service of process for the Issuer and the Guarantor;
together with confirmation that the original Deed of Covenant and the
original Guarantee have each been delivered to the Paying Agent.
5. Legal opinions from:
(A) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, English legal advisers to the Dealers;
(B) De Brauw Blackstone Westbroek, Dutch legal advisers to the
Issuer;
(C) ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, legal advisers to the Guarantor as
to the laws of the State of Delaware and the Federal laws of
the United States of America; and
(D) internal counsel of the Guarantor.
6. The Information Memorandum.
7. A list of the names and titles and specimen signatures of the persons
authorised:
(A) to sign and execute on behalf of the Issuer and the Guarantor
(as applicable) this Agreement, the Deed of Covenant, the
Agency Agreement, the Guarantee and the Notes (as applicable);
(B) to sign and execute on behalf of the Issuer and the Guarantor
(as applicable) all notices and other documents to be
delivered in connection therewith; and
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(C) to take any other action on behalf of the Issuer and the
Guarantor (as applicable) in relation to the Programme.
8. Confirmation from the Issuer or the Issue Agent that the relevant forms
of Sterling Definitive Note will be security printed and that the
relevant forms of Global Note have been prepared and the same delivered
to the Issue Agent.
9. Confirmation that ratings of A2 and P2 have been granted by Standard &
Poor's Rating Services, a Division of the ▇▇▇▇▇▇-▇▇▇▇ Companies and
▇▇▇▇▇'▇ Investors Service, respectively, for the Programme.
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SCHEDULE 2: SELLING RESTRICTIONS
1. GENERAL
By its purchase and acceptance of Notes issued under the Agreement to
which these Selling Restrictions are scheduled (the "Dealer
Agreement"), each Dealer represents, warrants and agrees that it will
comply with all applicable laws and regulations in any jurisdiction in
which it may offer, sell, or deliver Notes; and it will not directly or
indirectly offer, sell, resell, re-offer 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. The Issuer acknowledges that
the Dealers do not have any practical or legal means at their disposal
to seek to enforce any restrictions on the secondary trading of Notes,
nor to monitor or control the activities of the participants in such
secondary market.
2. UNITED STATES OF AMERICA
The Notes and the Guarantee have not been and will not be registered
under the United States Securities Act of 1933, as amended, (the
"Securities Act") and the Notes 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, nor any of its affiliates nor any person acting on its or
their behalf has engaged or will engage in any directed selling efforts
with respect to the Notes, and that it has and they have complied and
will comply with the offering restrictions requirement of Regulation S
under the Securities Act. 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
United States Securities Act of 1933, as amended (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.
3. THE NETHERLANDS
Each Dealer represents and agrees and each further Dealer appointed
under the Programme will represent and agree that it will in accordance
with the Netherlands Savings Certificate Act of 21 May 1985, as amended
(Wet inzake spaarbewijzen, the "Savings Certificates Act"), not
transfer or accept any Notes which fall within the definition of
savings certificates (spaarbewijzen) in the Savings Certificate Act,
unless the transfer and acceptance is done through the mediation of
either the Issuer or a securities institution which is admitted to the
trade or settlement on or through one or more of the exchanges or
systems held by the Amsterdam Exchanges N.V. (toegelaten instelling).
The aforesaid prohibition does not apply (i) to the transfer and
acceptance by individuals not acting in the conduct of their business
or profession, or (ii) to the initial issue of the Notes qualifying as
savings certificates to the first holders thereof. Pursuant to the
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Savings Certificate Act, certain identification requirements in
relation to the issue of, transfer of, acceptance of, or payment on the
Notes, qualifying as savings certificates, have to be complied with.
The Savings Certificate Act is not applicable to the issue and trading
of the Notes if the Notes are physically issued outside The Netherlands
and are not immediately thereafter distributed within The Netherlands
or to residents in the course of primary trading.
In addition each dealer acknowledges that Notes issued by the Issuer in
respect of which no recognition of the Information Memorandum as
referred to in EC Directive 89/298/EEC has been confirmed by the Dutch
Securities Board (Stichting Toezicht Effectenverkeer) (the "Securities
Board) shall, if the prohibition referred to in article 3, paragraph 1
of the Dutch 1995 Act on the supervision of the securities trade (Wet
toezicht effectenverkeer 1995) applies, only be issued and offered in
individual denomination of at least NLG 100,000 or the equivalent in
any other currency.
4. THE UNITED KINGDOM
Each Dealer represents and agrees that it has complied and will comply
with all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ with
respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom and, furthermore that it is a
person of a kind described in Article 11(3) of the Financial Services
▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996 (as
amended), and it will only issue or pass on in the United Kingdom any
publication or document received by it in connection with the issue of
Notes to a person who falls within Article 11(3) of the Financial
Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996
(as amended) or is a person to whom such publication or document may
otherwise be lawfully issued or passed on.
5. JAPAN
The Notes have not been and will not be registered under the Securities
and Exchange Law of Japan and each Dealer has agreed that it will not
offer or sell any Notes, directly or indirectly, in Japan or to or for
the benefit of any resident of Japan (which term as used herein means
any person resident in Japan, including any corporation or other entity
organised under the laws of Japan) or to others for re-offering or
resale, directly or indirectly, in Japan or to a resident of Japan,
except pursuant to an exemption from the registration requirements of,
and otherwise in compliance with, the Securities and Exchange Law of
Japan and any other applicable laws, regulations and ministerial
guidelines of Japan.
6. SWITZERLAND
Each Dealer agrees in respect of Swiss Franc Notes that it will comply
with any laws, regulations or guidelines in Switzerland from time to
time, including, but not limited to, any made by the Swiss National
Bank, in relation to the offer, sale, delivery or transfer of Swiss
Franc Notes or the distribution of any offering material in respect of
such Swiss Franc Notes.
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SCHEDULE 3: NOTIFICATION LETTER FOR AN INCREASE IN THE MAXIMUM AMOUNT
To: The Royal Bank of Scotland plc (as Arranger) and the Dealers referred
to below
cc - (as Issue Agent and Paying Agent)
[Date]
Dear Sirs
EUR [ ] EURO-COMMERCIAL PAPER PROGRAMME (THE "PROGRAMME")
We refer to a dealer agreement dated 7 June 2001(as the same may be amended and
supplemented from time to time, the "Dealer Agreement") between Harsco Finance
B.V. as Issuer, Harsco Corporation as Guarantor, The Royal Bank of Scotland plc
as Arranger and the persons appointed thereunder as Dealers (the "Dealers")
relating to the Programme. Terms used in the Dealer Agreement shall have the
same meaning in this letter.
In accordance with clause 2.6 of the Dealer Agreement, we hereby notify each of
the addressees listed above that the Maximum Amount is to be increased from EUR
[-] to EUR [-] with effect from [Date], subject to delivery to the Dealers, the
Arranger and the Issue Agent and [Principal] Paying Agent of the following
documents:
1. certificates from a duly authorised officer of each of the Issuer and
the Guarantor confirming that no changes have been made to the
constitutional documents of the Issuer or the Guarantor (respectively)
since the date of the Dealer Agreement which would have a material
effect on the Programme or, if there has been such a change, a
certified copy of the constitutional documents currently in force;
2. certified copies of all board, management or other resolutions and
other documents evidencing the internal authorisation and approval
required to be given by the Issuer and the Guarantor for such an
increase in the Maximum Amount;
3. certified copies of [specify any applicable governmental or other
consents required by the Issuer and the Guarantor];
4. legal opinions in form and substance satisfactory to the Dealers from
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, the Dealers' English legal advisers and from legal
advisers in The Netherlands and the United States of America acceptable
to the Dealers; and
5. confirmation that Standard & Poor's Ratings Services, a Division of the
▇▇▇▇▇▇-▇▇▇▇ Companies and ▇▇▇▇▇'▇ Investors Service are maintaining
their current ratings for the Programme; and
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6. 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 increase in Maximum
Amount (including, without limitation, this letter).
Yours faithfully
............................. ..............................
for and on behalf of for and on behalf of
Harsco Finance B.V. as Issuer Harsco Corporation as Guarantor
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SCHEDULE 4: DEALER ACCESSION LETTER
[On Letterhead of Issuer/Guarantor]
[Date]
To: [Name of Dealer]
Dear Sirs
EUR [ ] EURO-COMMERCIAL PAPER PROGRAMME
We refer to a dealer agreement dated 7 June 2001 (as the same may be amended and
supplemented from time to time, the "Dealer Agreement") between Harsco Finance
B.V. as Issuer, Harsco Corporation as Guarantor, The Royal Bank of Scotland plc
as Arranger and the persons appointed thereunder as Dealers (the "Dealers")
relating to the Programme. Terms used in the Dealer Agreement shall have the
same meaning in this letter.
In accordance with clause 8.2 of the Dealer Agreement, we hereby appoint you as
an Additional Dealer [1for the Programme/in respect of the issue of [specify
principal amount] Notes due [specify Maturity Date] (Series No: [-]) (the
"Issue")] upon the terms of the Dealer Agreement with [immediate effect/effect
from [Date]]. Copies of each of the condition precedent documents set out in
schedule 1 to the Dealer Agreement have been sent to you.
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 8.2 of the Dealer Agreement, become a party to the Dealer
Agreement 2[in relation to the Issue] 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 for and on behalf of
HARSCO FINANCE B.V. HARSCO CORPORATION
------------------
1 Delete as appropriate
2 Delete if Additional Dealer appointed for the Programme
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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 9 of the
Dealer Agreement our contact details are as follows:
[NAME OF DEALER]
Address: -
Telephone: -
Telex: -
Facsimile: -
Contact: -
Dated: ......................
Signed: ......................
for [Name of Additional Dealer]
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SCHEDULE 5: PROGRAMME SUMMARY
ISSUER: HARSCO FINANCE B.V. GUARANTOR: HARSCO CORPORATION
Address: Wenckebachstraat 1 Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
1951 JZ Velsen-Noord ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
1970 AB IJmuiden
The Netherlands Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: 001 717 763 6424
Contact: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
Facsimile: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇
Contact: Financial Manager
DEALER AND ARRANGER: THE ROYAL BANK OF SCOTLAND Plc DEALER: CITIBANK INTERNATIONAL plc
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telex: 913000 NWGTCMG
Facsimile: 020 7334 1900 Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Contact: Commercial Paper Group Telex: 299831CITIUK G
Facsimile: 020 7986 6837
Contact: Commercial Paper Desk
DEALER: NATIONAL WESTMINSTER BANK Plc ISSUE AGENT AND PAYING AGENT: THE CHASE MANHATTAN BANK
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Telex: 913000 NWGTCMG Telephone: ▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: 020 7334 1900 Facsimile: ▇▇▇▇▇ ▇▇ ▇▇▇▇
Contact: Commercial Paper Group Contact: Manager, Institutional Trust Services
MAXIMUM AMOUNT DENOMINATIONS
EUR 250,000,000 US$500,000
EUR 1,000,000
L500,000 L1,000,000
CHF1,000,000
Y100,000,000
AUD 1,000,000
(or other conventionally accepted denominations in
other currencies subject as provided in the Dealer Agreement.
Provided that Notes in any currency must have
a minimum denomination of NLG 100,000 (or its
equivalent in any other currency) as at the date of agreement
between the Issuer and the relevant Dealer to issue
such Note thereof)
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GOVERNING LAW FORM OF NOTES
Agreements and Notes: English Security printed Definitive Notes (Sterling Notes only)
Exchangeable Global Notes with Definitive Notes
available upon request (subject to certain conditions)
(Sterling Notes only) or on default or closure of
clearing system. Exchangeable Multicurrency Global
Notes with Definitive Notes only available on default.
Notes will be issued at a discount to face value
or may bear interest.
MINIMUM TERM: MAXIMUM TERM:
All currencies All currencies
1 day 364 days
CLEARING SYSTEMS: SELLING RESTRICTIONS:
Euroclear U.S.A.
Clearstream, Luxembourg United Kingdom
or any other recognised clearing Japan
system agreed by the Issuer, the Switzerland
Guarantor and the relevant Dealers The Netherlands
AGENT FOR SERVICE OF PROCESS
Issuer, and Guarantor:
Heckett MultiServ PLC
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Contact: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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HARSCO FINANCE B.V
as Issuer
By:
By:
HARSCO CORPORATION
as Guarantor
By:
THE ROYAL BANK OF SCOTLAND PLC
as Arranger and a Dealer
By:
CITIBANK INTERNATIONAL plc
as a Dealer
By:
NATIONAL WESTMINSTER BANK PLC
as Dealer
By:
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