EXHIBIT 10
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EXECUTION COPY
364-DAY CREDIT AGREEMENT
Dated as of December 23, 2005
among
HARSCO CORPORATION,
as Borrower,
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
and
THE ROYAL BANK OF SCOTLAND PLC,
as Syndication Agent
and
CITIGROUP GLOBAL MARKETS INC. and THE ROYAL BANK OF SCOTLAND PLC,
as Joint Lead Arrangers and Joint Bookrunners
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364-DAY CREDIT AGREEMENT
DATED AS OF DECEMBER 23, 2005
364-DAY CREDIT AGREEMENT dated as of December __, 2005 among HARSCO
CORPORATION, a Delaware corporation (the "BORROWER"), CITICORP NORTH AMERICA,
INC. ("CNAI") and THE ROYAL BANK OF SCOTLAND PLC ("RBS"). Capitalized terms not
otherwise defined in this Agreement shall have the same meanings as specified
therefor in the Five-Year Credit Agreement dated as of November 23, 2005 (as in
effect on the date hereof, the "EXISTING CREDIT AGREEMENT") among the Borrower,
the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent
for such lenders.
SECTION 1. The Advances. (a) Each of CNAI and RBS hereby severally agrees,
on the terms and conditions hereinafter set forth, to make advances (each, an
"ADVANCE") to the Borrower from time to time on any Business Day during the
period from the date of this Agreement to (but not including) the Termination
Date in an aggregate principal amount at any time outstanding for both of CNAI
and RBS not to exceed $100,000,000 (the "FACILITY"). Each Advance shall be made
at the same time and in the same principal amount by each of CNAI and RBS.
Within the limits of the unused portion of the Facility in effect from time to
time, the Borrower may borrow under this Section 1(a), prepay pursuant to
Section 1(e) and reborrow under this Section 1(a).
(b) The Borrower may request Advances hereunder by giving a notice of
borrowing (a "NOTICE OF BORROWING") to each of CNAI and RBS (A) not later than
10:00 A.M. (New York City time) on the Business Day of such Advances for
Advances bearing interest at a rate determined by reference to the Base Rate (as
defined below) ("BASE RATE ADVANCES") or (B) not later than 11:00 A.M. (New York
City time) on the third Business Days prior to such Advances for Advances
bearing interest at a rate determined by reference to the LIBO Rate ("EURODOLLAR
RATE ADVANCES"), which Notice of Borrowing shall be irrevocable and shall in
each case specify (i) whether the Advances then being requested are to be a
Eurodollar Rate Advances or Base Rate Advances, (ii) the date of such Advances
(which shall be a Business Day), (iii) the aggregate principal amount of the
Advances and (iv) if such Advances are to be Eurodollar Rate Advances, the
Interest Period with respect thereto. If no election as to the Type of Advances
is specified, then the requested Advances shall be Base Rate Advances. If no
Interest Period with respect to any Eurodollar Rate Advance is specified, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Upon fulfillment of the applicable conditions set forth in Sections 2,
if applicable, and 3, each of CNAI and RBS will make the proceeds of such
Advances available to the Borrower on the proposed date thereof by wire transfer
to the account specified by the Borrower in the related Notice of Borrowing in
immediately available funds by 12:00 noon (New York City time). All Notices of
Borrowing may be delivered by telephone and confirmed in writing. For purposes
of this Agreement, "BASE RATE" means, for any day, a fluctuating rate per annum
in effect from time to time, which rate per annum shall be equal to the greater
of (a) the rate of interest publicly announced by CNAI as its base rate in
effect on such day in New York, New York and (b) the sum of (i) 1/2 of 1% per
annum and (ii) the Federal Funds Effective Rate in effect on such day.
(c) The Facility shall be automatically terminated and the Borrower shall
repay to CNAI and RBS the aggregate principal amount of all outstanding Advances
made each of them, together with accrued and unpaid interest thereon, on the
earliest of (i) December 22, 2006, (ii) the date of the termination of the
Facility in full pursuant to Section 1(d) hereof and (iii) the date on which
CNAI and RBS shall have terminated their commitments hereunder and declared the
Advances forthwith due and payable during the continuance of an Event of Default
pursuant to Article VII of the Existing Credit Agreement as incorporated by
reference (the "TERMINATION DATE"). Upon the issuance by the Borrower or any of
its Subsidiaries of (i) any equity security in the capital markets or (ii) any
debt security in the
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capital markets with a maturity in excess of one year, the Facility shall
automatically reduce by an amount equal the cash proceeds (net of (i) the
out-of-pocket fees, costs and other expenses incurred by the Borrower or such
Subsidiary in connection with such issuance, including, without limitation, all
legal fees, brokerage fees, consulting fees, accounting fees, underwriting
discounts and commissions and other customary fees, costs and expenses, (ii)
income and other taxes paid or reasonably estimated to be actually payable in
connection therewith, and (iii) 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) actually received by the Borrower or such Subsidiary from any such
issuance on the fifth Business Day after the date of such receipt.
(d) The Borrower may, upon at least three Business Days' notice to CNAI and
RBS, terminate in whole or reduce ratably in part the Facility. The Borrower
shall, on each date of a reduction in the Facility as set forth in Section 1(c)
above or this Section 1(d), repay the Advances made by CNAI and RBS, ratably in
proportion to the aggregate amount of Advances owing to such Person, in a
principal amount equal to the excess of the aggregate principal amount of the
outstanding Advances over the Facility as so terminated or reduced.
(e) The Borrower may, upon notice given to CNAI and RBS not later than
11:00 A.M. (New York City time) (i) on the date of the proposed prepayment, in
the case of a prepayment of Base Rate Advances or (ii) on the third Business Day
prior to the date of prepayment, in the case of a prepayment of Eurodollar Rate
Advances, in each case stating the proposed date and aggregate principal amount
of the prepayment, and if such notice is given the Borrower shall, prepay the
aggregate principal amount of the Advances specified in such notice ratably (in
proportion to the aggregate amount of Advances owing to such Person) to CNAI and
RBS. All notices of prepayment may be given by telephone confirmed in writing.
All prepayments under this Section 1(e) shall be made together with (i) accrued
and unpaid interest to the date of such prepayment on the principal amount so
prepaid and (ii) in the case of any such prepayment of a Eurodollar Rate Advance
on a date other than the last day of an Interest Period therefor, any amounts
owing in respect of Eurodollar Rate Advances pursuant to Section 2.15 of the
Existing Credit Agreement as incorporated herein by reference.
(f) The Borrower shall pay interest on the unpaid principal amount of each
Advance from the date of such Advance until the principal amount thereof is paid
in full on the dates for payment specified for Borrowings of the same Type under
the Existing Credit Agreement at a rate per annum equal, (i) in the case of Base
Rate Advances, to the Base Rate in effect from time to time and (ii) in the case
of Eurodollar Rate Advances, to the sum of the LIBO Rate in effect for the
applicable Interest Period plus the Applicable Margin (as defined below) from
time to time in effect. Similarly, the Borrower shall pay a facility fee from
the date of this Agreement to the Termination Date at a rate per annum equal to
the Applicable Percentage (as defined below) from time to time in effect on the
Facility on the dates for payment specified for payment of the "Facility Fee"
under the Existing Credit Agreement and such fee payable hereunder shall be
calculated in the same manner as such "Facility Fee" thereunder. For purposes of
this Section 2(f), the terms "APPLICABLE MARGIN" and "APPLICABLE PERCENTAGE" are
each defined as a percentage per annum determined by reference to the Borrower's
Index Debt, as set forth on Schedule I to this Agreement.
(g) The Borrower shall make each payment hereunder, irrespective of any
right of counterclaim or setoff, not later than 12:00 Noon (New York City time)
on the day when due in Dollars and in same day funds to CNAI and RBS at the
respective accounts of CNAI and RBS most recently specified in writing to the
Borrower by CNAI and RBS, with payments received by CNAI and RBS after 12:00
Noon (New York City time) on any such day being deemed to have been received on
the next succeeding Business Day. All computations of interest determined by
reference to the Base Rate and of facility fees payable hereunder shall be made
on the basis of a year of 365 or 366 days, as the case may
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be, and all other computations of interest and fees payable hereunder shall be
made on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable.
(h) Section 2.22 of the Existing Credit Agreement is expressly not
incorporated by reference into this Agreement and the parties hereto agree that
the Facility is available only to the Borrower.
(i) The proceeds of the Advances shall be available for general corporate
purposes of the Borrower and its Subsidiaries, including commercial paper
back-stop.
SECTION 2. Conditions Precedent to the Effectiveness of Section 1. Section
1 of this Agreement shall become effective on the first date (the "EFFECTIVE
DATE") on which 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 Agreement 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 and this Agreement).
SECTION 3. Conditions Precedent to Each Advance. The obligation of CNAI and
RBS to make an Advance is subject to the satisfaction of the following
conditions:
(a) CNAI and RBS shall have received a Notice of
Borrowing;
(b) The representations and warranties set forth in
Article III of the Existing Credit Agreement as incorporated herein
by reference shall be true and correct in all material respects on
and as of the date of such Advance 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;
provided, however, that no representation as to either (i) the
absence of any Material Adverse Change in the financial condition of
the Borrower, as provided in the last sentence of Section 3.02 of
the Existing Credit Agreement as incorporated herein by reference,
or (ii) the absence of any pending or threatened legal or arbitral
proceedings, or any proceedings by or before any Governmental
Authority, that could have a Material Adverse Effect on the
Borrower, as provided in Section 3.03 of the Existing Credit
Agreement as incorporated herein by reference, shall be required as
a condition to any Advance following the Effective Date.
(c) The Borrower shall be in compliance with all the
terms and provisions set forth herein on its part to be observed or
performed, and at the time of and immediately after such Advance no
Event of Default or Default shall have occurred and be continuing.
Each Advance shall be deemed to constitute a representation and warranty by the
Borrower on the date of such Advance as to the matters specified in paragraphs
(b) and (c) of this Section 3.
SECTION 4. Incorporation by Reference. (a) All of the terms and conditions
of the Existing Credit Agreement (including, without limitation, all conditions,
representations and warranties, covenants, events of default, increased costs,
taxes, capital adequacy and assignment provisions, and all defined terms used
therein and exhibits and schedules to the Existing Credit Agreement referred to
therein) that are not otherwise fully and expressly set forth in this Agreement
are specifically incorporated herein by reference with the same force and effect
as if the same were set out in this Agreement in full; provided, however, that
Sections 2.01 through 2.05, inclusive, Sections 2.07, 2.08(a), (b) and (c), 2.11
and 2.12, Articles VIII and IX, and Sections 10.01, 10.02, 10.03, 10.05, 10.07,
10.08 and 10.14 are expressly not incorporated by reference herein. Except as
otherwise provided herein, all references in such incorporated provisions to the
"Administrative Agent", a "Lender", the "Lenders" or the "Required Lenders" or
words of similar import or to "this Agreement", "hereof", "hereto" or
"hereunder" or words of similar import or to any "Loan Document", "thereof",
"thereto" or "thereunder" or words of similar import shall, without further
reference, mean and refer to CNAI and RBS under this Agreement and to this
Agreement, respectively; all references in such
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incorporated provisions to the "Company" or a "Borrower" shall, without further
reference, mean and refer to the Borrower hereunder; all references in such
incorporated provisions to a "Loan" or the "Loans" (or to a Type of "Loan" under
the Existing Credit Agreement) or a "Borrowing" or the "Borrowings" or words of
similar import shall, without further reference, mean and refer to an Advance or
the Advances, as appropriate, hereunder; all references in such incorporated
provisions to a "Commitment" or the "Total Commitments" shall, without further
reference, mean and refer to the Facility hereunder; and all references in such
incorporated provisions to the "Maturity Date" shall, without further reference,
mean and refer to the Termination Date hereunder. Similarly, to the extent any
word or phrase is defined in this Agreement, any such word or phrase appearing
in provisions so incorporated by reference from the Existing Credit Agreement
shall have the meaning given to it in this Agreement. The incorporation by
reference into this Agreement of the terms and conditions of the Existing Credit
Agreement is for convenience only, and this Agreement and the Existing Credit
Agreement shall at all times be, and be deemed to be and treated as, separate
and distinct loan obligations. The incorporation by reference into this
Agreement of the terms and conditions of the Existing Credit Agreement shall not
be affected or impaired by any subsequent expiration or termination of the
Existing Credit Agreement.
(b) The Borrower, by its execution of this Agreement,
hereby agrees to amend and restate this Agreement at the request of
CNAI or RBS to set forth in full the provisions incorporated by
reference herein from the Existing Credit Agreement and to modify
the terms and provisions of this Agreement as appropriate to provide
for the inclusion of additional lenders upon any assignment or
proposed assignment by CNAI or RBS of its rights and obligations
hereunder effected in accordance with Section 5(h). In addition, the
Borrower hereby agrees to notify CNAI and RBS promptly and in any
event within three Business Days of any amendment, supplement or
other modification to the Existing Credit Agreement and, at the
request of CNAI or RBS, to enter into any amendment or supplement to
this Agreement proposed by CNAI or RBS to incorporate comparable
amendments, supplements or other modifications to this Agreement.
SECTION 5. Miscellaneous. (a) No amendment or waiver of any provision of
this Agreement, nor consent to any departure by the Borrower herefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Borrower, CNAI and RBS, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
(b) All notices and other communications provided for
hereunder (except as specified in Section 1(b)) shall be in writing
(including telecopier, telegraphic or telex) and mailed, telecopied,
telegraphed or delivered, if to the Borrower, at its address at ▇.▇.
▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ (Telecopy No. 717-763-6402); if to CNAI, at its address
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇), and if to RBS,
at its address at ▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇); or,
as to each party, at such other address as shall be designated by
such party in a written notice to the other party. All such notices
and communications shall, when mailed, telecopied or telegraphed, be
effective when deposited in the mails, telecopied or delivered to
the telegraph company, respectively, except that notices to CNAI and
RBS pursuant to the provisions of Section 1, 2 or 3 shall not be
effective until received by CNAI and RBS.
(c) No failure on the part of CNAI or RBS to exercise,
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and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
(d) The Borrower hereby agrees to pay on demand all
reasonable out-of-pocket costs and expenses of CNAI and RBS in
connection with the preparation, execution, delivery,
administration, modification, amendment and enforcement (whether
through negotiations, legal proceedings or otherwise) of this
Agreement and any other instruments or documents to be delivered in
connection herewith, including, without limitation, the reasonable
fees and disbursements of one counsel for CNAI and RBS with respect
thereto and with respect to advising CNAI and RBS as to their
respective rights and responsibilities under this Agreement and such
other agreements and documents.
(e) The Borrower agrees to indemnify and hold harmless
CNAI and RBS and each of their respective affiliates and their
officers, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages,
losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (i)
this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances or (ii) the
actual or alleged presence of Hazardous Materials on any property of
the Borrower or any of its Subsidiaries or any Environmental
Liablility relating in any way to the Borrower or any of its
Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by
a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which
the indemnity in this Section 5(e) applies, such indemnity shall be
effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated. The Borrower
also agrees not to assert any claim for special, indirect,
consequential or punitive damages against any Indemnified Party on
any theory of liability, arising out of or otherwise relating to
this Agreement, any of the transactions contemplated herein or the
use of the proceeds of the Advances.
(f) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations
of the Borrower contained in Sections 5(d) and (e) shall survive the
payment in full of principal, interest and all other amounts payable
hereunder.
(g) This Agreement shall be binding upon and inure to
the benefit of the Borrower, CNAI and RBS and their respective
successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without
the prior written consent of CNAI and RBS.
(h) CNAI and RBS may assign to one or more Persons
reasonably satisfactory to the Borrower all or a portion of their
respective rights and obligations under this Agreement (including,
without limitation, all or a portion of the Facility and the
Advances owing to it) on the same terms and subject to the same
conditions as are set forth for assignments by lenders under the
Existing Credit Agreement. In connection with any such assignment,
the Borrower agrees to execute and deliver such documentation as
CNAI or RBS or any such permitted assignee may
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reasonably request to evidence such assignment and the rights and
obligations of such assignee hereunder.
(i) This Agreement may be executed in separate
counterparts by the parties hereto, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier
shall be effective as delivery of an originally executed counterpart
of this Agreement.
(j) This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
HARSCO CORPORATION
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Treasurer
CITICORP NORTH AMERICA, INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
THE ROYAL BANK OF SCOTLAND PLC
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Vice President
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SCHEDULE I
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Applicable Percentage Applicable Margin
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Category 1
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A+ or higher by S & P; .060% .290%
A1 or higher by ▇▇▇▇▇'▇
----------------------------- --------------------- -----------------
Category 2
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A by S & P; .070% .330%
A2 by ▇▇▇▇▇'▇
----------------------------- --------------------- -----------------
Category 3
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A- by S & P; .080% .370%
A3 by ▇▇▇▇▇'▇
----------------------------- --------------------- -----------------
Category 4
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BBB+ by S & P; .090% .460%
Baa1 by ▇▇▇▇▇'▇
----------------------------- --------------------- -----------------
Category 5
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BBB or lower by S & P; .125% .600%
Baa2 or lower by ▇▇▇▇▇'▇
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For purposes of determining the Applicable Percentage and the Applicable Margin,
(a) if either ▇▇▇▇▇'▇ or S&P shall not have in effect a rating for Index Debt
(other than because such rating agency shall no longer be in the business of
rating corporate debt obligations), then such rating agency will be deemed to
have established a rating for Index Debt in Category 5; (b) if the ratings
established or deemed to have been established by ▇▇▇▇▇'▇ and S&P shall fall
within different Categories, the Applicable Percentage and the Applicable Margin
shall be determined by reference to the higher (or numerically lower) Category
unless one of the ratings is two or more Categories lower (or numerically
higher) than the other, in which case the Applicable Percentage and the
Applicable Margin shall be determined by reference to the Category next below
that of the higher of the two ratings; and (c) if any rating established or
deemed to have been established by ▇▇▇▇▇'▇ or S&P shall be changed (other than
as a result of a change in the rating system of either ▇▇▇▇▇'▇ or S&P), such
change shall be effective as of the date on which such change is first announced
by the rating agency making such change. Each change in the Applicable
Percentage and the Applicable Margin shall apply commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of either ▇▇▇▇▇'▇ or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, the Borrower, CNAI and RBS shall negotiate
in good faith to amend the references to specific ratings in this definition to
reflect such changed rating system or the nonavailability of ratings from such
rating agency.
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