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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) APRIL 16, 2007
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HARSCO CORPORATION
(Exact name of registrant as specified in its charter)
DE 1-3970 23-1483991
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
350 POPLAR CHURCH ROAD, CAMP HILL PA 17011
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 717-763-7064
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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ITEM 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN
OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT.
On April 16, 2007, Harsco Corporation (the "Company") entered into (i) a Credit
Agreement with The Royal Bank of Scotland Finance (Ireland) ("RBS Ireland")
providing for borrowings of up to $125,000,000 and (ii) a Credit Agreement with
The Royal Bank of Scotland plc ("RBS plc"), providing for borrowings of up to
$75,000,000 (collectively, the "Credit Agreements"). Each Credit Agreement
terminates on December 31, 2007, subject to earlier termination under certain
conditions as specified in the Credit Agreement.
The Credit Agreements provide the Company with additional financial flexibility
to pursue its growth strategies. The Company also has U.S. and international
commercial paper programs and other credit facilities available as more fully
described in its Form 10-K for the fiscal year ended December 31, 2006.
The Credit Agreements incorporate by reference from the Five-Year Credit
Agreement dated November 23, 2005 (the "Existing Credit Agreement") the usual
and customary affirmative and negative covenants and events of default that
would permit the lenders to accelerate the loans if not cured within applicable
grace periods, including the failure to make timely payments, the failure to
satisfy covenants and specified events of bankruptcy and insolvency.
The foregoing descriptions of the Credit Agreements do not purport to be
complete and are qualified in their entirety by reference to the full text of
the Credit Agreements, which are attached hereto as Exhibit 10.1 and Exhibit
10.2, respectively, the full text of the Existing Credit Agreement previously
filed with the Commission on November 28, 2005 and by reference to the
description of our debt and credit agreements contained in the Company's Form
10-K for the fiscal year ended December 31, 2006. From time to time, RBS plc and
RBS Ireland may provide customary commercial and investment banking services to
the Company.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
(d) Exhibits
Exhibit 10.1 Credit Agreement dated April 16, 2007 among Harsco
Corporation and The Royal Bank of Scotland Finance (Ireland)
Exhibit 10.2 Credit Agreement dated April 16, 2007 among Harsco
Corporation and The Royal Bank of Scotland plc
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HARSCO CORPORATION
(Registrant)
DATE April 19, 2007 /S/ Salvatore D. Fazzolari
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Salvatore D. Fazzolari
President, Chief Financial Officer
and Treasurer
EXHIBIT 10.1
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EXECUTION COPY
CREDIT AGREEMENT
Dated as of April 16, 2007
between
HARSCO CORPORATION,
as Borrower
and
THE ROYAL BANK OF SCOTLAND FINANCE (IRELAND),
as Lender
CREDIT AGREEMENT
DATED AS OF APRIL 16, 2007
CREDIT AGREEMENT dated as of April 16, 2007 between HARSCO CORPORATION, a
Delaware corporation (the "BORROWER"), and THE ROYAL BANK OF SCOTLAND FINANCE
(IRELAND) ("RBSFI").
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. Definitions. The following terms shall have the meanings set
forth in this Section 1:
"Advance" means a Borrowing bearing interest at a rate determined by
reference to the LIBO Rate. All Advances must bear interest at a rate determined
by reference to the LIBO Rate.
"Alternative Currency" means each of Euro and Sterling.
"Alternative Currency Equivalent" means, with respect to any amount of
Dollars on any date in relation to any specified Alternative Currency, the
amount of such specified Alternative Currency that may be purchased with such
amount of Dollars at the Spot Exchange Rate with respect to Dollars on such
date.
"Alternative Currency Advance" shall mean any Advance denominated in any
Alternative Currency.
"Availability Period" shall mean the period from the date of this Agreement
through June 8,2007 .
"Base Rate" shall mean, for any day, a rate per annum equal to the rate of
interest from time to time announced by the RBSFI as its base rate for such day
as quoted on Reuters screen USDRBSLCONT. Each change in any interest rate
provided for herein which is based upon the Base Rate resulting from a change in
the Base Rate shall take effect at the time of such change in the Base Rate.
"Business Day" shall mean any day (other than a day which is Saturday,
Sunday or a legal holiday in the State of New York or Dublin, Ireland) on which
banks are open for business in New York City or in Dublin, Ireland; provided,
however, that (a)the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market, and (b) when used in connection with an Advance
denominated in Euro, the term "Business Day" shall also exclude any day which is
not a TARGET Day.
"Conversion" or "Convert" shall mean a conversion of all or part of the
Loan from one Type of Loan into a Loan of another Type pursuant to Section 2(m)
hereof (including any such conversion made as a result of the operation of any
other provision hereof).
"Denomination Date" shall mean, in relation to any Alternative Currency
Advance, the date that is three Business Days before the date such Borrowing is
made.
"Interest Rate Determination Date" means with respect to any Interest
Period (i) if the currency is Dollars or Sterling, the first day of the Interest
Period and (ii) if the currency is Euro, the date that is two TARGET Days before
the first day of the Interest Period, unless in any such case, market practice
differs in the relevant interbank market for a currency (other than Dollars) in
which case the Interest Rate Determination Date for the currency will be
determined by RBSFI in accordance with market practice in the relevant interbank
market (and if quotations would normally be given by leading banks in the
relevant interbank market on more than one day, the Interest Rate Determination
Date will be the last of those days.)
"LIBO Rate" shall have the meaning ascribed thereto in the Existing Credit
Agreement but shall be determined as of the Interest Rate Determination Date.
"Spot Exchange Rate" shall mean, on any day, (a) with respect to any
Alternative Currency, the spot rate at which Dollars are offered on such day by
RBSFI in London for such Alternative Currency at approximately 11:00 a.m.
(London time), and (b) with respect to Dollars in relation to any specified
Alternative Currency, the spot rate at which such specified Alternative Currency
is offered on such day by RBSFI in London for Dollars at approximately 11:00
a.m. (London time). For purposes of determining the Spot Exchange Rate in
connection with an Alternative Currency Advance,such Spot Exchange Rate shall be
determined as of the Denomination Date for such Borrowing with respect to
transactions in the applicable Alternative Currency that will settle on the date
of such Advance.
"TARGET Day" means any day on which the Trans-European Real-time Gross
Settlement Express transfer payment system is open for settlement of payments in
Euro.
SECTION 2. The Advance. (a) RBSFI hereby agrees, on the terms and
conditions hereinafter set forth, to make a single Advance in Dollars or in one
or more Alternative Currencies to the Borrower on any Business Day during the
Availability Period (as herein defined) in an aggregate principal amount at any
time outstanding not to exceed $125,000,000 Dollars or the Alternative Currency
Equivalent thereof (the "FACILITY"). The Borrower may request only one Advance
under the Facility. The Borrower may request that portions of the Advance be
made in Dollars or in any Alternative Currency. Amounts borrowed and repaid or
prepaid may not be reborrowed. Amounts must be repaid in the currency in which
they were borrowed.
(b) The Borrower may request the Advance (in an amount equal to the
Facility) by giving a written notice of borrowing (a "NOTICE OF Borrowing") to
RBSFI not later than 3:00 P.M. (London time) on the third Business Day prior to
the Interest Rate Determination Date, which Notice of Borrowing shall be
irrevocable and shall in each case specify (i) the date of such Advance (which
shall be a Business Day), (ii) the currency of such Advance and (iii) the
Interest Period with respect thereto. If no Interest Period with respect to any
Advance is specified, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration which interest period may not end after
the Termination Date. Upon fulfillment of the applicable conditions set forth
herein RBSFI will make the Advance available to the Borrower on the proposed
date thereof by wire transfer to the account specified by the Borrower in the
Notice of Borrowing in immediately available funds by 3:00 P.M. (London time).
The Notice of Borrowing may be delivered by telephone if promptly confirmed in
writing.
(c) So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower shall have the option upon the expiration of any
Interest Period applicable to the Advance to continue all of the Advance or a
portion of the Advance in an amount equal to (i) in the case of any Dollar
denominated portion of the Advance, $5,000,000 and integral multiples of
$5,000,000 in excess of
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that amount, (ii) in the case of any Sterling denominated portion of the Advance
(pound)5,000,000 and integral multiples of (pound)5,000,000 in excess thereof
and (iii) in the case of Euro denominated portion of the Advance,
(euro)5,000,000 and integral multiples of (euro)5,000,000 in excess thereof. The
Borrower shall deliver a notice of continuation to RBSFI no later than 3:00 P.M.
(London time) on the third Business Day prior to the Interest Rate Determination
Date for such continuation. A notice for continuation of any Advance shall be
irrevocable on and after the related Interest Rate Determination Date.
(d) The Facility shall be automatically terminated and the Borrower shall
repay to RBSFI the aggregate principal amount of the Advance, together with
accrued and unpaid interest thereon, on the date (the "TERMINATION DATE") which
is the earliest of (i) December 31, 2007, (ii) the date of the termination of
the Facility in full pursuant to Section 2(e) hereof, (iii) the date on which
RBSFI shall have terminated its commitment hereunder and declared the Advance
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
(and with respect to an Event of Default under paragraph (g) or (h) of Article
VII of the Existing Credit Agreement , the Facility shall automatically
terminate and the Advance shall automatically become due and payable without
notice) , and (iv) the date on which RBSFI shall have terminated its commitment
hereunder and declared the Advance forthwith due and payable upon the
termination of the Existing Credit Agreement. Upon 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 , the Facility shall automatically permanently reduce by an amount equal to
the cash proceeds (net of 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) actually received by the Borrower or Subsidiary from
any such issuance on the tenth Business Day after the date of such receipt.
Notwithstanding the foregoing, any proceeds received from clauses (A) or (B) of
the immediately preceding sentence will be applied in the following order:
First, to reduce the facility under the 364-Day Credit Agreement dated
December 23, 2005, as amended among the Borrower, The Royal Bank of Scotland plc
and Citicorp North America, Inc.,
Second, to reduce the facility under the Credit Agreement dated the date
hereof between the Borrower and The Royal Bank of Scotland plc, and
Third, to reduce the Facility hereunder.
(e) The Borrower may, upon at least 30 Business Days' irrevocable notice to
RBSFI, terminate in whole or reduce in part the Facility, provided, however,
that each partial reduction of the Facility shall be (i) in the case of any
Dollar denominated portion of the Advance, an integral multiple of $25,000,000
and in a minimum principal amount of $25,000,000, (ii) in the case of any
Sterling denominated portion of the Advance, an integral multiple of
(pound)25,000,000 and in a minimum principal amount of (pound)25,000,000, and
(iii) in the case of any Euro denominated portion of the Advance, an integral
multiple of (euro)25,000,000 and in a minimum principal amount of
(euro)25,000,000.
(f) Upon irrevocable notice given to RBSFI not later than 3:00 P.M. (London
time) on the thirtieth Business Day prior to the date of prepayment stating the
proposed date and aggregate principal amount of the prepayment which shall be
(i) in the case of any Dollar denominated portion of the Advance being prepaid,
an integral multiple of $25,000,000 and in a minimum principal amount of
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$25,000,000, (ii) in the case of any Sterling denominated portion of the Advance
being prepaid, an integral multiple of (pound)25,000,000 and in a principal
amount of (pound)25,000,000, and (iii) in the case of any Euro denominated
portion of the Advance being prepaid, an integral multiple of (euro)25,000,000
and in a minimum principal amount of (euro)25,000,000 the Borrower may prepay
the aggregate principal amount of the Advance specified in such notice. All
notices of prepayment may be given by telephone if promptly confirmed in
writing. All prepayments under this Section 2(f) 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 on a date other
than the last day of an Interest Period therefor, any amounts owing pursuant to
Section 2.15 of the Existing Credit Agreement as incorporated herein by
reference.
(g) The Borrower shall pay interest on the unpaid principal amount of the
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 to the sum of the LIBO
Rate in effect for the applicable Interest Period plus the Applicable Margin (as
defined below). For purposes of this Section 2(g), the term "APPLICABLE MARGIN"
is 0.20% . Interest payable pursuant to this section shall be computed (i) in
the case of Advances denominated in Sterling on the basis of a 365-day or 366
day year, and (ii) in the case of other Advances , on the basis of a 360-day
year, in each case for the actual number of days elapsed in the period during
which it accrues. As soon as practicable after 12:00 P.M. (London time) on each
Interest Rate Determination Date, RBSFI shall determine (which determination
shall absent manifest error, be final, conclusive and binding on all parties)
the interest rate that shall apply to an Advance for which an interest rate is
then being determined for the applicable Interest Period and shall promptly give
notice thereof to the Borrower.
On the Effective Date, as hereinafter defined, the Borrower shall pay RBSFI
a non refundable upfront fee of 0.05% of the Facility in immediately available
funds ("Upfront Fee").
(h) RBSFI shall calculate on the last Business Day of each month the Dollar
Equivalent of the Advance. If after giving effect to such calculation and solely
as a result of changes in the Spot Exchange Rate, the Advance shall exceed an
amount equal to 103% of the aggregate amount of the Facility then in effect,
then the Borrower shall, in each case, immediately prepay the amount of such
excess.
(i) The Borrower shall make each payment hereunder, irrespective of any
right of counterclaim or setoff, not later than 3:00 P.M. (London time) on the
day when due in the currency borrowed and in same day funds to RBSFI at the
respective account of RBSFI most recently specified in writing to the Borrower
by RBSFI, with payments received by RBSFI after 3:00 P.M. (London time) on any
such day being deemed to have been received on the next succeeding Business Day.
(j) If the Borrower shall default in the payment of the principal of or
interest on the Advance or any other amount becoming due hereunder, whether by
scheduled maturity, notice of prepayment, acceleration or otherwise, the
Borrower shall on demand from time to time from RBSFI pay interest, to the
extent permitted by law, on such defaulted amount up to (but not including) the
date of actual payment at a rate per annum in the case of the Advance equal to
the rate of interest otherwise applicable plus 2% per annum and after the
expiration of an Interest Period for an Advance and in the case of other overdue
amounts at a rate of interest applicable to an Interest Period selected by RBSFI
not exceeding three months plus 2% per annum.
(k) The proceeds of the Advance shall be available for general corporate
purposes of the
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Borrower and its Subsidiaries, including acquisition financing.
(l) Section 2.21 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.
(m) Notwithstanding any other provisions herein, if any present or future
law, regulation, treaty or directive or in the interpretation or application
thereof shall make it unlawful for the Lender to make or maintain LIBO Rate, the
Lender shall forthwith give notice of such circumstances to the Borrower and
thereupon (a) the commitment of the Lender to make LIBO Rate or Convert any
portion of the Loan to a LIBO Rate shall forthwith be suspended, and (b) any
portion of the Loan then outstanding as LIBO Rate, if any, shall be Converted
automatically to Base Rate on the last day of each Interest Period applicable to
each such LIBO Rate or within such earlier period as may be required by law.
Notwithstanding anything contained in this Section 2 to the contrary, in the
event that the Lender is unable to make or maintain a LIBO Rate as set forth in
this Section 2, the Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate an
alternative LIBO Rate lending office so as to avoid such inability.
SECTION 3. Conditions Precedent to Effectiveness. This Agreement shall
become effective on the first date (the "EFFECTIVE DATE") which shall not be
later than April 16, 2007 on which all of the conditions precedent to the
closing date under Section 4.01(a), (b)(i), (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 RBSFI, as the lender, the Facility and this Agreement)
and the Borrower shall have paid RBSFI the Upfront Fee . The parties agree that
Section 4.01(b)(ii) of the Existing Credit Agreement shall not be applicable to
this Agreement.
SECTION 4. Conditions Precedent to the Advance. The obligation of RBSFI to
make the Advance is subject to the satisfaction of the following conditions:
(a) RBSFI 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 continuance of any Advance
following the date of the Advance.
(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.
The Advance shall be deemed to constitute a representation and warranty by
the Borrower on the date of the Advance as to the matters specified in
paragraphs (b) and (c) of this Section 4.
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SECTION 5. 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(a), 2.08(b), 2.08(c), 2.09,
2.11, 2.12, 2.21 and 2.22, Articles VIII and IX, and Sections 10.01, 10.02,
10.03, 10.05, 10.07, 10.8 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", "JPMorgan Chase Bank, N.A.", 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 RBSFI
under this Agreement and to this Agreement, respectively; all references in such
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
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 hereby agrees to amend and restate this Agreement at the
request of RBSFI 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 RBSFI of its rights and
obligations hereunder effected in accordance with Section 6(h). In addition, the
Borrower hereby agrees to notify RBSFI 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 RBSFI, to enter into any amendment or
supplement to this Agreement proposed by RBSFI to incorporate comparable
amendments, supplements or other modifications to this Agreement.
SECTION 6. 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 and RBSFI, 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 2(b)) shall be in writing (including telecopier,
telegraphic or telex) and mailed, telecopied,
6
telegraphed or delivered, if to the Borrower, at its address at P.O. Box 8888,
Camp Hill, Pennsylvania 17001-8888, Attention of Salvatore D. Fazzolari
(Telecopy No. 717-763-6402) with a copy to Mark E. Kimmel (Telecopy No.
717-763-6402; and if to RBSFI, at its address at Ulster Bank Group, George's
Quay, Dublin 1, Ireland, Attention Ms. Deirdre Hammond, Loans Administration
(Telecopy No. 35316084199) and 3rd Floor, Ulster Bank Group, George's Quay,
Dublin 1, Ireland Attention: Mr. Muiris O'Dwyer, Head of Origination (Telecopy
No. 35316431672); 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 RBSFI pursuant to the provisions
of Section 1, 2 or 3 shall not be effective until received by RBSFI.
(c) No failure on the part of RBSFI to exercise, 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 RBSFI 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 counsel
for RBSFI with respect thereto and with respect to advising RBSFI as to its
rights and responsibilities under this Agreement and such other agreements and
documents.
(e) The Borrower agrees to indemnify and hold harmless RBSFI and each of
its respective affiliates and its 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 Advance or (ii) the
actual or alleged presence of Hazardous Materials on any property of the
Borrower or any of its Subsidiaries or any Environmental Liability 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 6(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 Advance.
(f) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 6(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,
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RBSFI 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 RBSFI.
(h) RBSFI may assign to one or more persons reasonably satisfactory to the
Borrower all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of the Facility and the Advance
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 RBSFI or any such permitted assignee may reasonably
request to evidence such assignment and the rights and obligations of such
assignee hereunder. Notwithstanding the foregoing, RBSFI may assign to its
affiliates and subsidiaries all or a portion of its rights and obligations under
this Agreement without obtaining the Borrower `s consent.
(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.
8
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/ Salvatore D. Fazzolari
-----------------------------------------
Name: Salvatore D. Fazzolari
Title: President, Chief Financial Officer
and Treasurer
THE ROYAL BANK OF SCOTLAND FINANCE (IRELAND)
By /s/ Gerard Pendergast
-----------------------------------------
Name: Gerard Pendergast
Title: Director
By /s/ Len O'Connell
-----------------------------------------
Name: Len O'Connell
Title: Senior Manager
EXHIBIT 10.2
------------
EXECUTION COPY
CREDIT AGREEMENT
Dated as of April 16, 2007
among
HARSCO CORPORATION,
as Borrower
and
THE ROYAL BANK OF SCOTLAND PLC,
as Lender
CREDIT AGREEMENT
DATED AS OF APRIL 16, 2007
CREDIT AGREEMENT dated as of April 16, 2007 between HARSCO CORPORATION, a
Delaware corporation (the "BORROWER"), 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) RBS hereby agrees, on the terms and conditions
hereinafter set forth, to make advances in U.S. dollars (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 (as herein
defined) in an aggregate principal amount at any time outstanding not to exceed
$75,000,000 (the "FACILITY"). 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 written notice
of borrowing (a "NOTICE OF BORROWING") to 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 Day 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, such amount
being at least $5,000,000 and multiples of $1,000,000 thereof 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, RBS will make the proceeds of such Advance 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 if promptly 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 announced by RBS as its base rate in effect on such day 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 RBS the aggregate principal amount of all outstanding Advances made,
together with accrued and unpaid interest thereon, on the earliest of (i)
December 31, 2007, (ii) the date of the termination of the Facility in full
pursuant to Section 1(d) hereof, (iii) the date on which RBS shall have
terminated its commitment 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 (and with respect to
an Event of Default under paragraph (g) or (h) of Article VII of the Existing
Credit Agreement, the Facility shall automatically terminate and the Advances
shall automatically become due and payable without notice) and (iv) the date on
which RBS shall have terminated its commitment hereunder and
2
declared the Advances forthwith due and payable upon the termination of the
Existing Credit Agreement (the "TERMINATION DATE"). Upon 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, the Facility shall automatically permanently reduce by an
amount equal to the cash proceeds (net of 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) actually received by the Borrower or
Subsidiary from any such issuance on the tenth Business Day after the date of
such receipt. Notwithstanding the foregoing, any proceeds received from clauses
(A) or (B )in the immediately preceding sentence will be applied in the
following order :
First, to reduce the facility under the 364-Day Credit Agreement dated
December 23, 2005, as amended among the Borrower, The Royal Bank of Scotland
plc, and Citicorp North America, Inc.,
Second , to reduce the Facility hereunder, and
Third, to reduce the facility under the Credit Agreement dated the date
hereof between the Borrower and The Royal Bank of Scotland Finance(Ireland).
(d) The Borrower may, upon at least three Business Days' notice to RBS,
terminate in whole or reduce in part the Facility.
(e) The Borrower may, upon irrevocable notice given to 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 . All
notices of prepayment may be given by telephone if promptly 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, at the Base Rate in effect from time to time and (ii) in the case
of Eurodollar Rate Advances, at 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 RBS a commitment fee
("Commitment Fee") equal to the Applicable Percentage (as hereinafter defined)
times the actual daily amount of the unused portion of the Facility. The
Commitment Fee shall accrue at all times from the date of this Agreement to the
Termination Date, and shall be due and payable quarterly in arrears on the last
Business day of each of March, June, September, and December, commencing on
June, 2007, and on the Termination Date. The Commitment Fee shall be paid in
immediately available funds and shall be non-refundable. For purposes of this
Section 2(f), the term "APPLICABLE MARGIN" shall mean 0.370% and the term
"APPLICABLE PERCENTAGE" shall mean 0.15%.
On the Effective Date, the Borrower shall pay RBS a non-refundable upfront
fee of 0.05% of the Facility in immediately available funds ("Upfront Fee").
3
(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 RBS at the account of
RBS most recently specified in writing to the Borrower by RBS, with payments
received by 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 be, and all other computations of interest, Commitment
Fees 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 2.21 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 acquisition financing.
SECTION 2. Conditions Precedent to the Effectiveness of Section 1. This
Agreement shall become effective on the first date (the "EFFECTIVE DATE") which
shall be no later than April 16, 2007on which all of the conditions precedent to
the closing date under Section 4.01(a), (b)(i), (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 RBS, as the lender, the Facility and this Agreement)
and the Borrower shall have paid RBS the Upfront Fee. The parties hereby agree
that Section 4.01(b)(ii) of the Existing Credit Agreement shall not be
applicable to this Agreement.
SECTION 3. Conditions Precedent to Each Advance. The obligation of RBS to
make an Advance is subject to the satisfaction of the following conditions:
(a) 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.
4
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 2.06, 2.07(a), 2.08(c), 2.11,
2.12, 2.21, and 2.22 Articles VIII and IX, and Sections 10.01, 10.02, 10.03,
10.05, 10.07, 10.8 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", " JP Morgan Chase Bank, N.A.",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 RBS under
this Agreement and to this Agreement, respectively; all references in such
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
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 RBS of its rights and obligations hereunder effected
in accordance with Section 5(h). In addition, the Borrower hereby
agrees to notify 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 RBS, to enter into
any amendment or supplement to this Agreement proposed by 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 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 P.O.
Box 8888, Camp Hill, Pennsylvania 17001-8888, Attention of Salvatore
D. Fazzolari (Telecopy No. 717-763-6402) with a copy to Mark E.
Kimmel (Telecopy No. 717-763-6402); and if to RBS, at its
5
address at 101 Park Ave., 6th Floor, New York, New York 10178,
Attention: Peter Yetman (Telecopier No. (212) 401- 3456; 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 RBS
pursuant to the provisions of Section 1, 2 or 3 shall not be
effective until received by RBS.
(c) No failure on the part of RBS to exercise, 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 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 counsel for RBS with respect thereto and with
respect to advising RBS as to its rights and responsibilities under
this Agreement and such other agreements and documents.
(e) The Borrower agrees to indemnify and hold harmless
RBS and each of its respective affiliates and its 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 and the Termination Date.
(g) This Agreement shall be binding upon and inure to
the benefit of the Borrower, 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 RBS.
6
(h) RBS may assign to one or more Persons reasonably
satisfactory to the Borrower all or a portion of its 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 RBS or any such permitted assignee
may 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.
7
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/ Salvatore D. Fazzolari
------------------------------------
Name: Salvatore D. Fazzolari
Title: President, Chief Financial
Officer and Treasurer
THE ROYAL BANK OF SCOTLAND PLC
By Philippe Sandmeier
----------------------------
Name: Philippe Sandmeier
Title: Managing Director