AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
EXHIBIT
10.1
EXECUTION
COPY
AMENDMENT
NO. 1 TO THE
| Dated as of December 22, 2006 |
AMENDMENT
NO. 1 TO THE CREDIT AGREEMENT
among
HARSCO CORPORATION, a Delaware corporation (the “Borrower”),
the
banks, financial institutions and other institutional lenders parties to
the
Credit Agreement referred to below (collectively, the “Lenders”),
THE
ROYAL BANK OF SCOTLAND PLC, as syndication agent, and CITICORP NORTH AMERICA,
INC., as administrative agent.
PRELIMINARY
STATEMENTS:
(1) The
Borrower, CNAI and RBS have entered into a 364-Day Credit Agreement dated
as of
December 23, 2005 (the “Credit
Agreement”).
Capitalized terms not otherwise defined in this Amendment have the same meanings
as specified in the Credit Agreement.
(2) The
Borrower, CNAI and RBS have agreed to amend the Credit Agreement as hereinafter
set forth.
SECTION
1. Amendments
to Credit Agreement.
The
Credit Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 2, hereby
amended as follows:
(a) Section 1
is amended by deleting the phrase “in an aggregate principal amount at any time
outstanding for both of CNAI and RBS not to exceed $100,000,000” and
substituting therefor the phrase “in an aggregate principal amount at any time
outstanding for both of CNAI and RBS not to exceed $100,000,000, as such
amount
may be increased pursuant to Section 1(j)”.
(b) The
first
sentence of Section 1(c) is amended by deleting the date “December 22,
2006” and substituting therefor the date “December 21, 2007”.
(c) The
second sentence of Section 1(c) is amended in full to read as
follows:
Upon
(i)
the issuance by the Borrower or any of its Subsidiaries of (A) any equity
security in the capital markets or (B) any debt security in the capital markets
with a maturity in excess of one year or (ii) any sale, lease, transfer or
other
disposition of any asset of the Borrower or any of its Subsidiaries (other
than
sales of inventory in the ordinary course of business and other asset sales
for
which the cash proceeds in any single transaction or series or related
transactions are less than $50,000,000), the Facility shall automatically
reduce
by an amount equal to the cash proceeds (net of (1) the out-of-pocket fees,
costs and other expenses incurred by the Borrower or such Subsidiary in
connection with such transaction, including, without limitation, all legal
fees,
brokerage fees, consulting fees, accounting fees, underwriting discounts
and
commissions and other customary fees, costs and expenses, as applicable,
(2) income and other taxes paid or reasonably estimated to be actually
payable in connection therewith, (3) the amount of any reserves established
by the Borrower to fund any contingent liabilities reasonably expected to
arise
(as determined in good faith by the Borrower or such Subsidiary) in connection
therewith and (4) in the case of a transaction described in clause (ii) above,
the principal amount of any indebtedness that is secured by such asset and
is
required to be repaid in connection with such sale, lease, transfer or other
disposition thereof) actually received by the Borrower or such Subsidiary
from
any such issuance on the tenth Business Day after the date of such
receipt.
(d) Section
1
is amended by adding thereto a new clause (j) to read as follows:
(j)
The
Borrower may, at any time after January 1, 2007 but in any event not more
than
once, by notice to CNAI and RBS, request that the Facility be increased by
an
amount of $25,000,000 or an integral multiple of $5,000,000 in excess thereof
(each a "Facility
Increase")
to be
effective as of a date that is at least 90 days prior to the scheduled
Termination Date (the "Increase
Date")
as
specified in the related notice to CNAI and RBS; provided,
however
that (i)
in no event shall the amount of the Facility at any time exceed $250,000,000
and
(ii) on the date of any request by the Borrower for a Facility Increase and
on
the related Increase Date, (x) the representations and warranties set forth
in
Article III of the Existing Credit Agreement as incorporated in the Credit
Agreement by reference shall be true and correct in all material respects
on and
as of such date with the same effect as though made on and as of such date
(except to the extent such representations and warranties expressly relate
to an
earlier date) and (y) the Borrower shall be in compliance with all the terms
and
provisions set forth in the Credit Agreement on its part to be observed or
performed, and on such date no Event of Default or Default shall have occurred
and be continuing. If CNAI and RBS are willing to participate in such requested
Facility Increase, each in its sole discretion, CNAI and RBS shall give written
notice thereof to the Borrower on or prior to the date specified in the
Borrower’s request and on such date, the Facility shall be increased. If either
CNAI or RBS is not willing to participate in such requested Facility Increase,
the amount of the Facility shall not be increased.
SECTION
2. Conditions
of Effectiveness..
This
Amendment shall become effective as of the date first above written when,
and
only when, on or before December 22, 2006 CNAI shall have received counterparts
of this Amendment executed by the Borrower and CNAI and RBS, and additionally
all of the conditions precedent to the closing date under Section 4.01(a),
(b),
(c) and (d) of the Existing Credit Agreement shall have been satisfied with
respect to this Amendment as if such conditions precedent were set forth
in full
herein (with appropriate modifications to refer to CNAI and RBS, as the lenders,
the Facility, the Credit Agreement and this Amendment).
SECTION
3. Reference
to and Effect on the Credit Agreement.
a)
On and
after the effectiveness of this Amendment, each reference in the Credit
Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement, as amended by this Amendment.
(b) The
Credit Agreement, as specifically amended by this Amendment, is and shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed.
(c) The
execution, delivery and effectiveness of this Amendment shall not, except
as
expressly provided herein, operate as a waiver of any right, power or remedy
of
CNAI or RBS under the Credit Agreement, nor constitute a waiver of any provision
of the Credit Agreement.
SECTION
4. Costs
and Expenses.
The
Borrower agrees to pay on demand all costs and expenses of CNAI and RBS in
connection with the preparation, execution, delivery and administration,
modification and amendment of this Amendment and the other instruments and
documents to be delivered hereunder (including, without limitation, the
reasonable fees and expenses of counsel for CNAI and RBS) in accordance with
the
terms of Section 5(d) of the Credit Agreement.
SECTION
5. Execution
in Counterparts.
This
Amendment may be executed in any number of counterparts and by different
parties
hereto in separate counterparts, each of which when so executed shall be
deemed
to be an original and all of which taken together shall constitute but one
and
the same agreement. Delivery of an executed counterpart of a signature page
to
this
Amendment
by telecopier shall be effective as delivery of a manually executed counterpart
of this Amendment.
SECTION
6. Governing
Law.
This
Amendment shall be governed by, and construed in accordance with, the laws
of
the State of New York.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by
their respective officers thereunto duly authorized, as of the date first
above
written.
| HARSCO CORPORATION | ||
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| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
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Name: ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title: President,
Chief Financial Officer &
Treasurer
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| CITICORP NORTH AMERICA, INC. | ||
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| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
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By
▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
Vice President
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| THE ROYAL BANK OF SCOTLAND PLC | ||
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| /s/L. ▇▇▇▇▇ Yetrman | ||
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By
L. ▇▇▇▇▇ Yetrman
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Title:
Senior Vice President
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FORM
OF
INCREASE REQUEST
__________,
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The
Royal
Bank of Scotland plc
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
L. ▇▇▇▇▇ ▇▇▇▇▇▇
Ladies
and Gentlemen:
Reference
is made to the 364-Day Credit Agreement dated as of December 23, 2005 (as
amended by Amendment No. 1 dated as of December 21, 2006, the “Credit
Agreement”,
terms
defined in the Credit Agreement are used herein as therein defined) among
you
and us. Pursuant to Section 1(j) of the Credit Agreement, we hereby request
that, effective as of __________, 2007 (the “Increase
Date”),
the
Facility be increased to $__________, to be shared by each of you in equal
amounts. We hereby certify that, as of the date hereof and as of the Increase
Date, (x) the representations and warranties set forth in Article III of
the Existing Credit Agreement as incorporated in the Credit Agreement by
reference shall be true and correct in all material respects on and as of
such
date with the same effect as though made on and as of such date (except to
the
extent such representations and warranties expressly relate to an earlier
date)
and (y) the Borrower shall be in compliance with all the terms and provisions
set forth in the Credit Agreement on its part to be observed or performed,
and
on such date no Event of Default or Default shall have occurred and be
continuing.
The
Facility Increase shall become effective as of the Increase Date when
counterparts of this letter shall have executed by both CNAI and RBS. Please
indicate your approval of the requested Facility Increase by signing and
returning a counterpart of this letter to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on or before the
Increase Date.
| Very truly yours, | ||
| HARSCO CORPORATION | ||
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| By: | ||
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Title |
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Accepted:
CITICORP
NORTH AMERICA, INC.
By:
Title:
THE
ROYAL
BANK OF SCOTLAND PLC
By:
Title: