DEALER AGREEMENT

 

                                                                   EXHIBIT 10(b)

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                               HARSCO FINANCE B.V.

                                     Issuer

 

                               HARSCO CORPORATION

                                    Guarantor

 

 

 

 

                                ING BELGIUM SA/NV

                                     Dealer

 

 

 

 

 

 

 

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                                DEALER AGREEMENT

 

                               SEPTEMBER 24, 2003

 

 

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                          PROGRAMME OF EUR 100,000,000

                          DEMATERIALISED TREASURY NOTES

 

 

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                                DEALER AGREEMENT

 

 

Dated as of September ____, 2003

 

 

BETWEEN

 

(a)  Harsco Finance B.V., a limited company validly existing under Dutch Law,

     having its registered office at Wenckbachstraat 1, NL-1951JZ Velsen Noord,

     The Netherlands, represented by Mr

     .........................................., acting in his capacity of

     .......................................... and Mr

     .........................................., acting in his capacity of

     .......................................... (the "ISSUER");

 

and

 

 

 

(b)  HARSCO Corporation, a company validly existing under Delaware law, having

     its registered office at c/o Corporation Trust Company, Corporation Trust

     Center, 1209 Orange Street, Wilmington, Delaware 19801, U.S.A., represented

     by Mr .........................................., acting in his capacity of

     .......................................... and Mr

     .........................................., acting in his capacity of

     .......................................... (the "GUARANTOR");

 

                                                                ON THE ONE HAND,

 

 

AND

 

(c)  ING Belgium SA/NV, a credit institution validly existing under the laws of

     the Kingdom of Belgium, having its registered office at Avenue Marnixlaan

     24, B-1000 Brussels, Belgium, registered with the Commercial Register of

     Brussels under nr. 77.186, represented by Mr Francois De Witte, acting in

     his capacity of Vice-President and Mr Bertrand Soenen, acting in his

     capacity of Head of Securities Transaction Management (the "ARRANGER" or

     the "DEALER");

 

                                                              ON THE OTHER HAND,

 

 

FOR THE PURPOSE OF THIS DEALER AGREEMENT, ALL CAPITALISED TERMS USED HEREIN

SHALL, UNLESS DEFINED OR SPECIFIED OTHERWISE OR WHERE THE CONTEXT REQUIRES

OTHERWISE, HAVE THE RESPECTIVE MEANINGS GIVEN THERETO IN THE INFORMATION

MEMORANDUM RELATED TO THE EUR 100,000,000 PROGRAMME FOR THE ISSUE OF

DEMATERIALISED TREASURY NOTES BY THE ISSUER DATED SEPTEMBER ......., 2003 (THE

"PROGRAMME") (THE "INFORMATION MEMORANDUM").

 

 

WHEREAS,

 

The Issuer, pursuant to a decision of its Board of Directors dated July 24,

2003, has established the EUR 100,000,000 Programme for the issue of Treasury

Notes denominated in Euro or in any other Foreign Currency, subject to the Terms

and Conditions of the Treasury Notes and according to the Law of July 22, 1991,

as amended from time to time and the Royal Decree of October 14, 1991, as

amended from time to time;

 

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WHEREAS,

 

the Issuer has appointed ING Belgium SA/NV, which has accepted, to act as

Domiciliary Agent pursuant to the Domiciliary Agency Agreement dated September

..... , 2003;

 

WHEREAS,

 

the Treasury Notes will be unconditionally and irrevocably guaranteed by Harsco

Corporation as to all payments due under the Programme, pursuant to a guarantee

signed on September ....., 2003 (the "GUARANTEE");

 

WHEREAS,

 

the Issuer, the Domiciliary Agent and BNB/NBB will execute the Clearing

Agreement in relation to the clearing of the Treasury Notes to be issued by the

Issuer;

 

 

THE PARTIES HERETO AGREE AS FOLLOWS:

 

 

1.   APPOINTMENT OF THE ARRANGER

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The Issuer hereby appoints ING Belgium SA/NV as arranger of the Programme.

 

The Arranger will be responsible for the preparation of this Agreement and the

Domiciliary Agency Agreement and will submit the Programme to the Clearer for

acceptance in the Clearing System.

 

The Arranger shall inform the Issuer of its obligations under laws and

regulations applicable to the Programme and shall assist the Issuer in complying

with such obligations.

 

2.   APPOINTMENT OF THE DEALER

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The Issuer hereby appoints ING Belgium SA/NV to act for it as dealer for the

sale and purchase of the Treasury Notes and the Dealer hereby accepts such

appointment upon the terms of this Agreement.

 

3.   GENERAL

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Subject to the terms hereof, the Issuer may from time to time issue Treasury

Notes for placement by the Dealer upon such conditions as the Issuer and the

Dealer may agree. For the avoidance of doubt, the Dealer shall act on a best

effort basis and without commitment to underwrite any issue of Treasury Notes.

 

4.   ISSUE PROCEDURE

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a)   The Issuer may from time to time ask the Dealer to bid for Treasury Notes

     and the Dealer may from time to time bid for Treasury Notes, provided that

     the Issuer shall have no obligation to sell Treasury Notes to the Dealer,

     except as and when agreed, and the Dealer shall have no obligation to

     purchase Treasury Notes from the Issuer, except as and when agreed.

 

b)   If the Dealer makes a bid that is accepted by the Issuer and subsequently

     confirmed by the Dealer, the Dealer shall send as soon as possible by

     facsimile an Issuer Confirmation Form to the Issuer and an Investor

     Confirmation Form to the investors Each confirmation form shall incorporate

     by reference the Terms and Conditions of the Treasury Notes.

 

c)   If the Dealer makes a bid that is accepted by the Issuer and subsequently

     confirmed by the Dealer pursuant to (b) above, then the Issuer will be

     obliged to issue and the Dealer will be obliged to purchase the Treasury

 

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     Notes and the Issuer shall cause such Notes to be issued and delivered in

     accordance with the terms of the Domiciliary Agency Agreement.

 

d)   The Issuer acknowledges that the Dealer may resell Treasury Notes purchased

     by it, in accordance with and subject to Clause 8 (SELLING RESTRICTIONS)

     below.

 

e)   Whenever the Issuer wishes to issue Notes, any of its authorised officers

     shall contact the Dealer directly by telephone at the latest on the

     Business Day which is two business days prior to the Settlement Date for

     Treasury Notes with a maturity up to one year and three Business Days prior

     to the Issue Date for Treasury Notes with a maturity of over one year, to

     indicate the Tenor(s), the currency, the amount(s) if requests and the

     Settlement Date, if possible together with the financial terms and

     conditions.

 

f)   The Dealer shall identify potential investors and invite them:

 

     -    to bid for the purchase of the Treasury Notes up to the amount and for

          the period requested by the Issuer; or

 

     -    to purchase the Treasury Notes at the financial conditions and

          following the terms fixed by the Issuer.

 

g)   As soon as possible but in any event on or before 12.00 a.m. (Brussels

     time) on the Trade Date, the Dealer shall inform the Issuer of the result

     of its placing effort or of the financial conditions at which it would be

     possible to raise all or part of the requested amounts. In the latter case,

     the Dealer shall immediately inform the investor(s) of the acceptance or

     refusal of its (their) bid.

 

h)   The Dealer shall:

 

     -    request the ISIN code from the Domiciliary Agent;

 

     -    give to the Domiciliary Agent at the latest on the Trade Date or such

          later time or date as may subsequently be agreed between the Dealer

          and the Domiciliary Agent, details of the Treasury Notes to be issued;

 

     -    send by facsimile transmission to the Issuer the Issuer Confirmation

          Form and to the investor an Investor Confirmation Form indicating the

          terms of the transaction.

 

     The transaction shall be executed according to the terms of the Issuer

     Confirmation Form, unless the Issuer contacts the Dealer, at the latest at

     4.00 p.m. (Brussels time) on the second Business Day preceding the Issue

     Date, to indicate any error or discrepancy.

 

     If at any time, an investor looking for Treasury Notes of the Issuer takes

     the initiative to approach the Dealer, the Dealer shall inform the Issuer

     of such demand. The Issuer shall have the right but not the obligation to

     issue Treasury Notes.

 

 

5.   REPRESENTATIONS AND WARRANTIES

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The Issuer and the Guarantor represent and warrant to the Dealer at the date of

this agreement and each date upon which Treasury Notes are, or are to be, issued

that:

 

(a)  each of the establishment of the Programme and the execution, delivery and

     performance by the Issuer and/or the Guarantor of this Agreement, the

     Domiciliary Agency Agreement, the Clearing Agreement and the Treasury

     Notes; the entering into and performance by the Issuer and/or the Guarantor

     of this Agreement, the Domiciliary Agency Agreement, the Clearing

     Agreement; and the issue and sale of the Treasury Notes by the Issuer under

     the Agreements, has been duly authorised by all necessary action and the

     same constitute, or, in the case of Treasury Notes, will, constitute legal,

     valid and binding obligations of the Issuer and/or the Guarantor

     enforceable against it in accordance with their respective terms (subject

     to insolvency laws and moratorium laws relating to the rights of creditors

     generally); and this Agreement, the Domiciliary Agency Agreement, the

     Clearing Agreement will not conflict with or constitute a breach of, or a

     default under any material indenture, agreement or other instrument to

     which the Issuer and/or the Guarantor is a party or by which they are

     bound, or any law, administrative regulation or court decree applicable to

     it;

 

(b)  the obligations of the Issuer and/or Guarantor under each of this

     Agreement, the Domiciliary Agency Agreement, the Clearing Agreement and the

     Treasury Notes will rank (other than in the case of obligations preferred

     by mandatory provisions of law) at least PARI PASSU with all other present

     and future unsecured indebtedness of the Issuer;

 

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(c)  the Issuer is duly incorporated and validly existing under the laws of the

     Netherlands, with full power and authority to conduct its business and to

     execute, deliver and comply with the provisions of this Agreement, the

     Domiciliary Agency Agreement and the Clearing Agreement; the Guarantor is

     duly incorporated and validly ecisting under Delaware law, with full power

     and authority to conduct its business and to execute, deliver and comply

     with the provisions of this Agreement, the Guarantee, the Domiciliary

     Agency Agreement and the Clearing Agreement and:

 

     -    the establishment of the Programme, the execution, delivery and

          performance by the Issuer of the Agreements and the Treasury Notes;

 

     -    the entering into and performance by the Issuer of any agreement for

          the sale of Treasury Notes reached; and

 

     -    the issue and sale of the Treasury Notes by the Issuer under the

          Agreements,

 

     will not infringe any of the provisions of the Issuer's Articles of

     Association ("STATUTS/STATUTEN");

 

(d)  the audited financial statements and any interim financial statements

     (audited or unaudited) published subsequently thereto and incorporated by

     reference in the Information Memorandum present fairly and accurately the

     financial position of the Issuer and its subsidiaries and of the Guarantor

     as of the respective dates of such statements and the results of operations

     of the Issuer and its subsidiaries and of the Guarantor for the periods