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COMMERCIAL PAPER PLACEMENT AGENCY AGREEMENT, dated as of November 6, 1998,
between HARSCO CORPORATION, a Delaware corporation (the "Issuer"), and CHASE
SECURITIES INC., a Delaware corporation (the "Placement Agent").
The Issuer intends to issue short-term notes pursuant to Section 4(2) of
the Securities Act of 1933, as amended (the "1933 Act"), and Rule 506
thereunder.
The Issuer desires to enter into this Agreement with the Placement Agent
in order to provide for the offer and sale of such notes in the manner described
herein.
The parties hereto, in consideration of the premises and mutual covenants
herein contained, agree as follows:
1. Definitions
"Business Day" shall mean any day other than a Saturday or Sunday or a day
when banks are authorized or required by law to close in New York City.
"Company Information" shall mean the Private Placement Memorandum (defined
below), together with, to the extent applicable, information provided by the
Issuer pursuant to Section 7(b) hereof.
"DTC" shall mean the Depository Trust Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Institutional Accredited Investor" shall mean an institutional investor
that is reasonably believed to qualify as an "accredited investor" as defined in
Rule 501 (a) (1), (2), (3) or (7) under the 1933 Act.
"Issuing and Paying Agent" shall mean The Chase Manhattan Bank, the
issuing and paying agent under the Issuing and Paying Agency Agreement, or any
successor thereto.
"Issuing and Paying Agency Agreement" shall mean the issuing and paying
agency agreement, dated as of ___________ __, ______, and October 12, 1994
between [Xxxxxx], as the Issuing and Paying Agent and the Issuer, the
obligations under which were assumed by The Chase Manhattan Bank on _____ __,
199_, as the same may from time to time be amended.
"Notes" shall mean short-term promissory notes of the Issuer, represented
by master notes substantially in the form of Annex A to the Issuing and Paying
Agency Agreement, issued by the Issuer from time to time pursuant to the Issuing
and Paying Agency Agreement.
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"Offering Materials" shall mean the offering materials concerning the
Issuer contemplated by Section 7 hereof (including the materials incorporated by
reference therein), and such offering materials as from time to time revised or
supplemented.
"Private Placement Memorandum" shall mean the private placement memorandum
with respect to the offer and sale of the Notes (including materials referred to
therein or incorporated by reference therein), prepared in accordance with
Section 7 hereof and provided to purchasers or prospective purchasers of the
Notes, and all amendments and supplements thereto which may be prepared from
time to time in accordance with this Agreement.
"Person" shall mean an individual, a corporation, a partnership, a trust,
an association or any other entity.
"Qualified Institutional Buyer" shall have the meaning assigned to that
term in Rule 144A.
"Rule 144A" shall mean Rule 144A under the 1933 Act.
"SEC" shall mean the U.S. Securities and Exchange Commission, or any
successor thereto.
2. Issuance and Placement of Commercial Paper Notes
(a) The Issuer hereby appoints the Placement Agent to act as the Issuer's
placement agent in connection with the sale of the Notes in accordance with the
terms hereof, and the Placement Agent hereby accepts such appointment. While (i)
the Issuer has and shall have no obligation to permit the Placement Agent to
purchase any Notes for its own account or to arrange for the sale of the Notes
and (ii) the Placement Agent has and shall have no obligation to purchase any
Notes for the Placement Agent's own account or to arrange for the sale of Notes,
the parties agree that, as to any and all Notes which the Placement Agent may
purchase or the sale of which the Placement Agent may arrange, such Notes will
be purchased or sold by the Placement Agent in reliance on, among other things,
the agreements, representations, warranties and covenants of the Issuer
contained herein and on the terms and conditions and in the manner provided for
herein. Without limiting the generality of the foregoing, the Issuer agrees that
the Issuer will not engage any person or party to assist in the placement of the
Notes other than a placement agent that has executed a placement agreement with
the Issuer which agreement contains procedures and terms substantially in the
form of those set forth in Section 6 hereof (each such placement agent, along
with the Placement Agent, referred to herein as an "Approved Placement Agent"
and together, the "Approved Placement Agents") and that it shall provide the
Placement Agent with a copy thereof within five (5) Business Days of execution
thereof.
(b) If the Issuer and the Placement Agent shall agree on the terms of the
purchase of any Note by the Placement Agent or the sale of any Note arranged by
the
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Placement Agent (including, but not limited to, agreement with respect to
the date of issue, purchase price, principal amount, maturity and interest rate
(in the case of interest-bearing Notes) or discount rate thereof (in the case of
Notes issued on a discount basis), and appropriate compensation for the
Placement Agent's services hereunder) pursuant to this Agreement, the Placement
Agent shall confirm the terms of each such agreement promptly to the Issuer in
the Placement Agent's customary form, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement, and payment for such Note shall be made in accordance with
such Agreement. The authentication and delivery of such Note by the Issuing and
Paying Agent shall constitute the issuance of such Note by the Issuer. The
Issuer shall deliver Notes signed by the Issuer to the Issuing and Paying Agent,
and instructions shall be delivered to the Issuing and Paying Agent to complete,
authenticate and deliver such Notes in the manner prescribed in the Issuing and
Paying Agency Agreement. So long as incurred at the time with the prior approval
of the Issuer, the Placement Agent shall be entitled to compensation at such
rates and paid in such manner as the Issuer and the Placement Agent shall from
time to time agree upon and to reimbursement for the Placement Agent's
out-of-pocket costs and expenses, including, but not limited to, fees and
disbursements of outside counsel, in connection with the transactions
contemplated hereby.
(c) The Notes shall be issued in book-entry form only. Notes in book-entry
form shall be represented by master notes registered in the name of a nominee of
DTC and recorded in the book-entry system maintained by DTC. References to
"Notes" in this Agreement shall refer to such book-entry Notes unless the
context otherwise requires. The Notes may be issued either at a discount or as
interest-bearing obligations with interest payable at maturity in a stated
amount.
(d) Each Note purchased by, or the sale of which is arranged through, the
Placement Agent hereunder shall (i) have a face amount of $250,000, or an
integral multiple of $1,000 in excess thereof, (ii) have a maturity which is a
Business Day not later than the 270th day next succeeding such Note's date of
issuance and (iii) not contain any provision for extension, renewal or automatic
"rollover."
3. Representations and Warranties of the Issuer.
(a) The Issuer represents and warrants as follows:
(i) The Issuer is a duly organized and validly existing corporation in
good standing under the laws of the jurisdiction of its incorporation and has
the corporate power and authority to own its property, to carry on its business
as presently being conducted, to execute and deliver this Agreement, the Issuing
and Paying Agency Agreement, and the Notes, and to perform and observe the
conditions hereof and thereof.
(ii) Each of this Agreement and the Issuing and Paying Agency Agreement
has been duly and validly authorized, executed and delivered by the Issuer and
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constitutes the legal, valid and binding agreement of the Issuer. The issuance
and sale of Notes by the Issuer hereunder have been duly and validly authorized
by the Issuer and, when delivered by the Issuing and Paying Agent as provided in
the Issuing and Paying Agency Agreement, each Note will be the legal, valid and
binding obligation of the Issuer.
(iii) Assuming that the Notes are offered and sold in the manner
contemplated by Section 6 below, the offer and sale by the Issuer of such Notes
will constitute exempt transactions under Section 4(2) of the 1933 Act and Rule
506 thereunder, and, accordingly, registration of the Notes under the 1933 Act
will not be required. Qualification of an indenture with respect to the Notes
under the Trust Indenture Act of 1939, as amended, will not be required in
connection with the offer, issuance, sale or delivery of the Notes.
(iv) The Issuer is neither an "investment company" nor a "company
controlled by an investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(v) No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority is required to authorize, or
is otherwise required in connection with, the execution, delivery or performance
of this Agreement, the Issuing and Paying Agency Agreement or the Notes.
(vi) Neither the execution and delivery by the Issuer of any of this
Agreement, the Issuing and Paying Agency Agreement and the Notes, nor the
fulfillment of or compliance with the terms and provisions hereof or thereof by
the Issuer, will (x) result in the creation of imposition of any mortgage, lien,
charge or encumbrance of any nature whatsoever upon any of the properties or
assets of the Issuer or (y) violate any of the terms of the Issuer's charter
documents or by-laws, any contract or instrument to which the Issuer is a party
or by which it or its property is bound, or any law or regulation, or any order,
writ, injunction or decree of any court or governmental instrumentality, to
which the Issuer is subject or by which it or its property is bound.
(vii) There are no actions, suits, proceedings, claims or governmental
investigations pending or, to the knowledge of the Issuer, threatened against
the Issuer or any of its officers or directors or any persons who control the
Issuer (within the meaning of Section 15 of the 1933 Act or Section 20 of the
Exchange Act) or to which any property of the Issuer is subject, which could in
any way result in a material adverse change in the condition (financial or
otherwise) of the Issuer, or materially prevent or interfere with, or materially
and adversely affect the Issuer's execution, delivery of performance of, any of
this Agreement, the Issuing and Paying Agency Agreement and the Notes, of which
the Placement Agent has not been notified in writing.
(viii) The initial Offering Materials do not, and any amendments or
supplements thereto and any subsequent Offering Materials and any amendments or
supplements thereto will not, contain any untrue statement of a material fact or
omit to state a
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material fact necessary in order to make the statements made therein, in light
of the circumstances under which they are made, not misleading.
(b) Each issuance of Notes by the issuer shall be deemed a representation
and warranty by the Issuer to the Placement Agent, as of the date thereof, that
both before and after giving effect to such issuance, (i) the representations
and warranties of the Issuer set forth in Section 3(a) hereof remain true and
correct on and as of such date as if made on and as of such date (except to the
extent such representations and warranties expressly relate solely to an earlier
date); (ii) the corporate resolutions and certificate of incumbency referred to
in Section 5 hereof remain accurate and in full force and effect; (iii) since
the date of the most recent Offering Materials, there has been no material
adverse change in the financial condition or operations of the Issuer which has
not been disclosed to the Placement Agent in writing; and (iii) the Issuer is
not in default of any of its obligations hereunder, under the Issuing and Paying
Agency Agreement or under any Note.
4. Covenants and Agreements of the Issuer.
(a) Without the prior written consent of the Placement Agent, the Issuer
shall not permit to become effective any amendment, supplement, waiver or
consent to or under the Issuing and Paying Agency Agreement. The Issuer shall
give to the Placement Agent, at least 10 Business Days prior to the proposed
effective date thereof, notice of any proposed amendment, supplement, waiver or
consent under the Issuing and Paying Agency Agreement. The Issuer shall provide
to the Placement Agent, promptly after the same is executed, a copy of any
amendment, supplement or written waiver or consent covered by the notice
requirements of this Section 4(a). The Issuer further agrees to furnish prior
written notice to the Placement Agent, as soon as possible and in any event at
least 10 Business Days prior to the effective date thereof, of any proposed
resignation, termination or replacement of the Issuing and Paying Agent.
(b) The Issuer shall, whenever there shall occur any change in the
Issuer's financial condition or any development or occurrence in relation to the
Issuer that would be material to the holders of Notes or potential holders of
Notes, promptly, and in any event prior to any subsequent issuance of Notes,
notify the Placement Agent (by telephone, confirmed in writing) of such change,
development or occurrence.
(c) The Issuer covenants and agrees with the Placement Agent that the
Issuer will promptly furnish to the Placement Agent a copy of any notice, report
or other information, relating to the Notes delivered to or from rating agencies
then rating the Notes.
(d) The Issuer shall not use the proceeds of the sale of the Notes for the
purpose of purchasing or carrying securities within the meaning of Regulation T
of the Board of Governors of the Federal Reserve System, unless the Issuer gives
not less than 10 days' prior written notice to the Placement Agent of the
Issuer's intention to do
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so and prompt notice of the actual commencement of such use of proceeds. In the
event that, after receipt of such a notice, the Placement Agent purchases Notes
as principal and does not resell such Notes on the day of such purchase, the
Placement Agent shall sell such Notes only to persons it reasonably believes to
be Qualified Institutional Buyers or to Qualified Institutional Buyers it
reasonably believes are acting for other Qualified Institutional Buyers, in each
case pursuant to Rule 144A.
5. Conditions Precedent.
At or promptly after the execution of this Agreement, and as conditions
precedent to any obligations of the Placement Agent hereunder, there shall have
been furnished to the Placement Agent, in form and substance satisfactory to the
Placement Agent:
(i) an original or photocopy of the executed Issuing and Paying
Agency Agreement;
(ii) a certified copy of resolutions duly adopted by the Board of
Directors of the Issuer authorizing and approving the
transactions contemplated hereby;
(iii) a certificate of incumbency showing the officers and other
representatives of the Issuer authorized to execute Notes and
to give instructions concerning the issuance of Notes;
(iv) an opinion of counsel to the Issuer addressed to the Placement
Agent as to the matters set forth in subsections (i)-(vii) of
Section 3(a) above and as to such other matters as the
Placement Agent shall reasonably request;
(v) a copy of each other opinion of counsel furnished to any
Person that may be delivered in connection with the issuance
of the Notes, including, but not limited to, any opinion
delivered under or relating to the Issuing and Paying Agency
Agreement, each of which shall be addressed to the Placement
Agent;
(vi) true and correct copies of the letters assigning ratings and
of all other correspondence to the Issuer from the rating
agencies that have assigned a rating to the Notes;
(vii) a copy of the Offering Materials, including the Private
Placement Memorandum, approved in writing by the Issuer;
(viii) true and correct copies of any documents relating to the Notes
executed by the Issuer and DTC; and
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(ix) in connection with issuance of Notes in book-entry form, a
copy of the master note(s) evidencing such Notes.
6. Offers, Sales and Resales of Notes.
All offers and sales of the Notes by the Issuer shall be effected pursuant
to the exemption from the registration requirements of the 1933 Act provided by
Section 4(2) thereof, which exempts transactions by an issuer not involving any
public offering. Offers and sales of the Notes by the Issuer through the
Placement Agent acting as agent for the Issuer shall be made in accordance with
Rule 506 under the 1933 Act. Notes may be resold or otherwise transferred by the
holders thereof only if the Notes are registered under the 1933 Act or if any
exemption (including, but not limited to, the exemption afforded by Rule 144A)
from the registration requirements of the 1933 Act is available, provided,
however, that the Issuer shall have no obligation to register the Notes under
the 1933 Act and has no intention of doing so at any time in the future.
The Placement Agent (only with respect to offers and sales made by it as
agent for the Issuer and reoffers and subsequent resales or other transfers made
by or through the Placement Agent) and the Issuer hereby establish and agree to
observe the following procedures in connection with offers, sales and subsequent
resales or other transfers of the Notes:
(a) The Issuer hereby confirms to the Placement Agent that within the
preceding six months neither the Issuer nor any person other than an Approved
Placement Agent acting on behalf of the Issuer has offered or sold any Notes, or
any substantially similar security of the Issuer to, or solicited offers to buy
any such security from, any person other than an Approved Placement Agent. The
Issuer also agrees that, as long as the Notes are being offered for sale by the
Approved Placement Agents as contemplated hereby and until at least six months
after the offer of Notes hereunder has been terminated, neither the Issuer nor
any person other than the Approved Placement Agents will offer the Notes or any
substantially similar security of the Issuer for sale to, or solicit offers to
buy any such security from, any person other than the Approved Placement Agents
without the giving of prior written notice to the Placement Agent, it being
understood that such agreement is made with a view to bringing the offer and
sale of the Notes within the exemption provided by Section 4(2) of the 1933 Act
and Rule 506 thereunder and shall survive any termination of this Agreement.
(b) Offers and sales of the Notes shall be made only to the following
types of investors; (i) Institutional Accredited Investors (including, but not
limited to, a bank, as defined in Section 3(a)(2) of the 1933 Act, or a savings
and loan association or other institution, as defined in Section 3(a)(5)(A) of
the 1933 Act, whether acting in its individual or fiduciary capacity, provided
that, if it is acting in a fiduciary capacity, it has sole investment discretion
with respect to any account for which it is purchasing a Note), (ii) fiduciaries
or agents (other than U.S. banks or savings and loan associations of the type
described in clause (i) of this sentence) that will be purchasing Notes for one
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or more accounts, each of which is an Institutional Accredited Investor, and
(iii) Qualified Institutional Buyers.
(c) Resales and other transfers of the Notes by the holders thereof shall
be made only to the Issuer or to Institutional Accredited Investors or, in the
case of Notes resold or otherwise transferred pursuant to Rule 144A, to
Qualified Institutional Buyers or, if the Rule 144A resale is made through the
Placement Agent, to institutional investors that the Placement Agent reasonably
believes to qualify as Qualified Institutional Buyers. The Placement Agent shall
not be liable to any person or entity for any resales or other transfers made in
violation of the foregoing conditions that are not made by or through the
Placement Agent.
(d) The Notes shall be offered only by approaching prospective purchasers
on an individual basis. No general solicitation or general advertising shall be
used in connection with the offering of the Notes. Without limiting the
generality of the foregoing, without the prior written approval of the Placement
Agent, the Issuer shall not issue any press release, generate any publicity,
allow any "tombstone" or other advertisement to be published, or hold any
meeting with securities analysts to the extent that any of these actions relates
to the Notes.
(e) No sale of Notes to any one purchaser shall be for less than $250,000
principal amount, and no Note shall be issued in a smaller face amount. If the
purchaser is a non-bank fiduciary acting on behalf of others, each person for
whom such purchaser is acting must purchase at least $250,000 face amount of
Notes.
(f) Each Note shall contain the following legend:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW. BY ITS
ACCEPTANCE OF THIS NOTE, THE PURCHASER REPRESENTS THAT (A) THE PURCHASER
IS (1) AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF REGULATION D UNDER THE ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), INCLUDING, WITHOUT LIMITATION, A BANK, AS DEFINED IN SECTION
3(a)(2) OF THE ACT, OR A SAVINGS AND LOAN ASSOCIATION OR OTHER
INSTITUTION, AS DEFINED IN SECTION 3(a)(5)(A) OF THE ACT, WHETHER ACTING
IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY, PROVIDED THAT, IF IT IS ACTING IN
A FIDUCIARY CAPACITY, IT HAS SOLE INVESTMENT DISCRETION WITH RESPECT TO
ANY ACCOUNT FOR WHICH IT IS PURCHASING A NOTE, OR (2) A FIDUCIARY OR AGENT
(OTHER THAN A U.S. BANK OR SAVINGS AND LOAN ASSOCIATION OF THE TYPE
DESCRIBED IN CLAUSE (A)(1) OF THIS SENTENCE) PURCHASING THIS NOTE FOR AN
ACCOUNT WHICH IS AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING
AT LEAST $250,000 OF NOTES OF THE TYPE REPRESENTED HEREBY, OR (3) A
QUALIFIED INSTITUTIONAL BUYER ("QIB") WITHIN THE MEANING OF RULE 144A
UNDER THE ACT; (B) THIS NOTE IS BEING ACQUIRED FOR
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INVESTMENT AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY
DISTRIBUTION HEREOF; (C) ANY RESALE OF THIS NOTE WILL BE MADE ONLY (1) TO
THE ISSUER, CHASE SECURITIES INC. ("CSI"), OR ANOTHER PERSON DESIGNATED BY
THE ISSUER AS A PLACEMENT AGENT FOR THIS NOTE (CSI AND EACH SUCH PLACEMENT
AGENT TO BE REFERRED TO HEREINAFTER AS A "PLACEMENT AGENT"), NONE OF WHICH
SHALL HAVE ANY OBLIGATION TO ACQUIRE THIS NOTE, (2) THROUGH A PLACEMENT
AGENT TO AN INSTITUTIONAL INVESTOR APPROVED AS AN ACCREDITED INVESTOR OR
REASONABLY BELIEVED TO BE A QIB BY A PLACEMENT AGENT IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE ACT, OR (3) TO A QIB IN A TRANSACTION
THAT MEETS THE REQUIREMENTS OF RULE 144A; AND (D) IN THE CASE OF SALES
PURSUANT TO RULE 144A, IT IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR THE
ACCOUNT OF ANOTHER QIB AND THE PURCHASER UNDERSTANDS THAT THIS NOTE WAS
SOLD TO THE PURCHASER PURSUANT TO AN EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE ACT PURSUANT TO RULE 144A.
(g) The Placement Agent shall furnish to each purchaser of newly issued
Notes a copy of the Private Placement Memorandum, and each amendment or
supplement thereto (other than any amendment or supplement that has been
completely superseded by a later amendment or supplement), and any additional
Offering Materials approved by the Issuer and requested by such purchaser.
(h) For so long as any of the Notes is outstanding and is a "restricted
security" within the meaning of Rule 144(a)(3) under the 1933 Act, (i) the
Issuer shall cause to be provided to any holder of Notes and any prospective
purchaser of the Notes designated by a holder of such Notes, upon the request of
such holder or prospective purchaser, the information, if any, required to be
provided to such holder or prospective purchaser by Rule 144A(d)(4) and (ii) the
Issuer shall update such information from time to time in order to prevent such
information from becoming false or misleading and the Issuer shall take such
other actions as are necessary to ensure that the safe harbor exemption from the
registration requirements of the 1933 Act under Rule 144A is and will be
available for resale of the Notes conducted in accordance with Rule 144A.
(i) In the event that any Note offered or to be offered by the Placement
Agent would be ineligible for resale under Rule 144A (because such Note is of
the same class (within the meaning of Rule 144A) as any other securities of the
Issuer which are at such time listed on a national securities exchange
registered under Section 6 of the Exchange Act, or quoted in a U.S. automated
inter-dealer quotation system), the Issuer shall immediately notify the
Placement Agent (by telephone, confirmed in writing) of such fact and shall
promptly prepare and deliver to the Placement Agent an amendment or supplement
to the Offering Materials describing the Notes that are ineligible, the reason
for such ineligibility and any other relevant information relating thereto.
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(j) The Issuer agrees promptly from time to time to take such action as
the Placement Agent may reasonably request to qualify the Notes for offering and
sale under the securities laws of such jurisdictions as the Placement Agent may
request and to comply with such laws so as to permit the continuance of sales
and resales therein for as long as may be necessary to complete the transactions
contemplated hereby, provided that in connection therewith the Issuer shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction other than consent to service of process
under such state securities laws. The Issuer also agrees to reimburse the
Placement Agent for any reasonable fees or costs incurred in so qualifying the
Notes.
7. Disclosure.
(a) The Issuer understands that, in connection with the offer and sale of
the Notes, from time to time offering materials, including a Private Placement
Memorandum and any other Company Information approved by the Company for
dissemination to purchasers or potential purchasers of the Notes (the "Offering
Materials"), will be prepared relating to the Issuer, which may be distributed
to the Placement Agent's sales personnel and to purchasers and prospective
purchasers of the Notes.
(b) To provide a basis for the preparation of the Offering Materials and
to assist in the Placement Agent's ongoing credit review procedures and sale of
the Notes, the Issuer agrees to furnish to the Placement Agent, as these items
become available, (i) the Issuer's most recent report on Form 10-K filed with
the SEC and each report on Form 10-Q or 8-K filed by the Issuer with the SEC
since the most recent Form 10-K, (ii) the Issuer's most recent annual audited
financial statements and each interim financial statement or report prepared
subsequent thereto, if not included in item (i) above, (iii) the Issuer's and
its affiliates' other publicly available recent reports, including, but not
limited to, any publicly available filings or reports provided to their
respective shareholders, any national securities exchange or any rating agency,
and any information generally supplied in writing to securities analysts, (iv)
research reports with respect to the Company prepared by any brokerage house or
rating agency, (v) any other information or disclosure prepared pursuant to
Section 7(f) hereof, and (vi) any other information or document prepared or
approved by the Issuer for dissemination to purchasers or potential purchasers
of the Notes. In addition, the Issuer shall provide the Placement Agent with
such other information as the Placement Agent may reasonably request for the
purpose of its ongoing credit review of the Issuer.
(c) The Issuer recognizes that the accuracy and completeness of the
Offering Materials are dependent on the accuracy and completeness of the
information obtained by the Placement Agent and, subject to Section 7(d) and
Section 8 hereof, the Placement Agent shall not be responsible for any
inaccuracy in any Offering Materials.
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(d) The Placement Agent agrees that prior to the distribution of any
Offering Materials the Placement Agent will provide the Issuer with a copy
thereof for the Issuer's review and approval. The Issuer agrees to notify the
Placement Agent in writing within 14 calendar days of receipt of such Offering
Materials of the Issuer's approval or disapproval thereof. Any such approval by
the Issuer shall be deemed to be a representation by the Issuer that the
Offering Materials (excluding any information furnished by the Placement Agent
expressly for inclusion therein, as set forth in the sections thereof entitled
"CSI Affiliates" and "Additional Information") so approved does not contain an
untrue statement of a material fact nor omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they are made, not misleading.
(e) The Issuer represents and warrants to the Placement Agent that the
financial statements of the Issuer delivered or to be delivered to the Placement
Agent in accordance with this Section 7 are or will be in accordance with
generally accepted accounting principles and practices in effect in the United
States on the date such statements were or will be prepared and fairly do or
will present the financial condition and operations of the Issuer at such date
and the results of the Issuer's operations for the period then ended.
(f) The Issuer further agrees to notify the Placement Agent promptly upon
the occurrence of (i) any event that would render any fact contained in the
Issuer's most recent financial reports, as submitted to the Placement Agent,
untrue or misleading, or (ii) any event relating to or affecting the Issuer that
would cause the Offering Materials then in use to include an untrue statement of
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading. In such event, the Issuer agrees to supply the
Placement Agent promptly with such information as will correct such untrue or
misleading statement or such omission.
8. Indemnification.
(a) The Issuer agrees to indemnify the Placement Agent and its affiliates,
their respective directors, officers, employees, and agents, and each person who
controls the Placement Agent or its affiliates within the meaning of the 1933
Act or the Exchange Act and any successor thereto (the Placement Agent and each
such person being an "Indemnified Person") from and against any and all losses,
claims, damages and liabilities, joint or several, to which such Indemnified
Person may become subject under any applicable federal or state law, or
otherwise, related to or arising out of (i) any untrue statement or alleged
untrue statement or a material fact contained in the Offering Materials or in
any information (whether oral or written) or documents furnished or made
available by the Issuer to offerees of the Notes or any of their representatives
or the omission or the alleged omission to state therein a material fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, or (ii) any matter or transaction
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contemplated by this Agreement or by the engagement of the Placement Agent
pursuant to, and the performance by the Placement Agent of the services
contemplated by, this Agreement and shall promptly reimburse any Indemnified
Person for all expenses (including, but not limited to, fees and disbursements
of internal and external counsel), as they are incurred, in connection with the
investigation of, preparation for or defense of any pending or threatened claims
or any action or proceeding arising therefrom, whether or not such Indemnified
Person is a party, provided, however, that, with respect to (ii) herein, the
Issuer shall not be liable in any such case to the extent such loss, claim,
damage or liability is finally judicially determined to have resulted primarily
from an Indemnified Person's gross negligence or willful misconduct.
(b) Promptly after receipt by an Indemnified Person under this Section 8
of notice of any claim or the commencement of any action, the Indemnified Person
shall, if a claim in respect thereof is to be made against the Issuer under this
Section 8, notify the Issuer in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the Issuer shall not
relieve it from any liability that the Issuer may have under this Section 8
except up to the extent of any factual and material prejudice suffered by the
Issuer as a result of such failure; and, provided, further, that in no event
shall the failure to notify the Issuer relieve it from any liability that the
Issuer may have to an Indemnified Person otherwise than under this Section 8. If
any such claim or action shall be brought against an Indemnified Person, and
notifies the Issuer thereof, the Issuer shall be entitled to participate therein
and, to the extent that the Issuer wishes, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Person. After notice from the
Issuer to the Indemnified Person of the Issuer's election to assume the defense
of such claim or action, the Issuer shall not be liable to the Indemnified
Person under this Section 8 for any legal or other expenses subsequently
incurred by the Indemnified Person in connection with the defense thereof other
than reasonable costs of investigation. The Issuer shall not be liable for any
settlement of any such action effected without the Issuer's written consent
(which consent shall not be unreasonably withheld) but, if settled with the
Issuer's written consent or if there is final judgment for the plaintiff in any
such action, the Issuer agrees to indemnify and hold harmless any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 8 is for
any reason unavailable or insufficient to hold harmless an Indemnified Person,
other than as expressly provided above, the Issuer and the Placement Agent shall
contribute to the aggregate costs of satisfying such liability (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuer, on the one hand, and the Placement Agent, on the other hand, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuer on the
one hand and the Placement Agent on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits
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received by the Issuer on the one hand and the Placement Agent on the other with
respect to such offering shall be deemed to be in the same proportion as the
aggregate proceeds to the Issuer of the Notes sold pursuant hereto (before
deducting expenses) bear to the aggregate commissions and fees earned by the
Placement Agent hereunder. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuer on the one hand or the Placement
Agent on the other, the intent of the parties, and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Issuer and the Placement Agent agree that it would
not be just and equitable if contributions pursuant to this Section 8 were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an Indemnified Person as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 8 shall be deemed to include, for purposes of this Section 8, but not be
limited to, any fees and disbursements of internal and external counsel
reasonably incurred by an Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 8, the aggregate of all amounts paid by the Placement Agent pursuant to
the foregoing shall not exceed the aggregate of such commissions and fees earned
by the Placement Agent hereunder.
(d) The obligations of the Issuer in this Section 8 are in addition to any
other liability that the Issuer may otherwise have.
(e) The provisions of this Section 8 shall survive the termination of this
Agreement.
9. Choice of Forum.
The Issuer agrees that any suit, action or proceeding brought by the
Issuer against the Placement Agent in connection with or arising out of this
Agreement, any agreement, instrument or document entered into in connection with
this Agreement, or the offer and sale of the Notes shall be brought solely in
the Federal courts located in the Borough of Manhattan or the courts of the
State of New York located in the Borough of Manhattan.
10. Notices.
All notices required under the terms and provisions hereof shall be in
writing, delivered by hand, by mail (postage prepaid), or by telex, telecopier
or telegram, and any such notice shall be effective when received at the address
specified below.
If to the Issuer: If to the Placement Agent:
Harsco Corporation Chase Securities Inc.
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000 Xxxxxx Xxxxxx Xxxx 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Director of Treasury Attention: Money Market Division
Fax No.: 000-000-0000 Fax No.: 000-000-0000
or, if to any of the foregoing parties or their successors, at such other
address as such party or successor may designate from time to time by notice
duly given in accordance with the terms of this Section 10 to the other party
hereto.
11. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAWS
PROVISIONS.
12. Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto
with respect to the matters covered hereby and supersedes all prior agreements
and understandings between the parties.
13. Amendment and Termination; Successors; Counterparts.
(a) The terms of this Agreement shall not be waived, altered, modified,
amended or supplemented in any manner whatsoever except by written instrument
signed by both parties hereto. The Issuer or the Placement Agent may terminate
this Agreement upon at least 30 days' written notice to the other, provided that
such termination shall not affect the obligations of the parties hereunder with
respect to Notes unpaid at the time of such termination or with respect to
actions or events occurring prior to such termination.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
that neither the Issuer nor the Placement Agent may assign, either in whole or
in part, any of its rights or obligations under this Agreement without the prior
written consent of the other party, and any such assignment without such consent
shall be null and void, except that the Placement Agent may assign and transfer
this Agreement to a successor in interest to the Placement Agent as a result of
a merger of the Placement Agent with any of its affiliates, or the acquisition
of the Placement Agent or The Chase Manhattan Corporation.
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(c) This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
14. Captions.
The captions in this Agreement are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
15. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity of such provisions in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
HARSCO CORPORATION
By: /s/ XXXXX X. XXXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxxx
Title:Vice President - Corporate
Development
and Treasurer
CHASE SECURITIES INC.
By: /s/ XXXXX XXXXXX
------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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