THIS AMENDING AGREEMENT is made the 12 th day of December 2005 BETWEEN WHEREAS NOW IT IS AGREED as follows:
EXHIBIT
10 (a) (vi)
THIS
AMENDING AGREEMENT
is made
the 12 th day of December 2005
BETWEEN
(1) |
HARSCO
FINANCE B.V. (a
company incorporated in The Netherlands) and HARSCO
INVESTMENT LIMITED (registered
number 03985379) (each a "Borrower"
and together the "Borrowers");
|
(2)
|
HARSCO
CORPORATION (a
corporation incorporated in the State of Delaware) (the "Guarantor");
and
|
(3)
|
THE
ROYAL BANK OF SCOTLAND plc
acting as agent for NATIONAL
WESTMINSTER BANK Plc
(the "Lender")
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WHEREAS
(A) |
The
Lender, the Borrowers and the Guarantor entered into a US$50,000,000
credit facility dated 15 December 2000, as amended by side letters
dated
19 December 2001, 6 March 2003, 19 December 2003 and 17 December
2004 (the
"Facility
Agreement");
and
|
(B) |
The
Lender, the Borrowers and the Guarantor have agreed to make certain
amendments to the Facility
Agreement.
|
NOW
IT IS AGREED as
follows:
1. |
AMENDMENTS
|
Notwithstanding
the terms of Clause 7.3(a) of the Facility Agreement, with effect from the
Effective Date the following amendments shall be made to the Facility
Agreement:
1.1
|
In
the definition of "Commitment"
in
Clause 1.1 of the Facility Agreement sub clause (a) shall be deleted
in
its entirety and replaced with:
|
"Commitment"
means
US$50,000,000, to the extent not cancelled, reduced or transferred by the Lender
under this Agreement.
1.2
|
In
the definition of "Final
Maturity Date"
in
Clause 1.1 of the Facility Agreement sub clause (a) shall be deleted
in
its entirety and replaced with:
|
(a) |
in
relation to a Revolving Loan not converted into a Term Loan pursuant
to
Clause 7.2 (Term-Out), the date which is 364 days from the date of
the
Amending Agreement entered into between the Lender, the Borrower
and the
Guarantor and dated 12 December 2005 (the "Amending
Agreement")
or, if extended in accordance with Clause 7.3 (Extension), the date
provided for in Clause 7.3 (Extension); or
|
1.3 |
Clause 7.2(b)(i)
of the Facility Agreement shall be deleted in its entirety and replaced
with:
|
(i) |
the
date to which the Final Maturity Date for each Term Loan converted
from a
Revolving Loan is to be extended, which date shall be no later than
the
date falling two years after the date of the Amending
Agreement;
|
1.4 |
Clause
7.2(b)(iv) of the Facility Agreement shall be deleted in its entirety
and
replaced with:
|
(iv) |
the
Final Maturity Date for any further Term Loan requested, which date
shall
be no later than the date falling two years after the date of the
Amending
Agreement.
|
1.5 |
Clause
19.11 of the Facility Agreement shall be deleted in its entirety
and
replaced with:
|
The
report on Form 10-K for the period ending December 31, 2004, and the Report
on
Form 10-Q for the period ending September 30, 2005, filed by the Guarantor
with
the U S Securities and Exchange Commission are the most current 10-K and 10-Q
financial statements, and fairly represent in all material respects the
Guarantor's financial position at those dates.
2. |
EFFECTIVE
DATE
|
The
Effective Date shall be the date the Lender confirms it has received, in form
and substance satisfactory to it:
2.1 |
a
copy, certified a true and up to date copy by the Secretary of Harsco
Investment Limited of a resolution of its board of directors approving
the
execution and delivery of this Amending Agreement and the performance
of
the obligations hereunder and authorising a person or persons (specified
by name) on behalf of it to sign and deliver this Amending Agreement
and
any other documents to be delivered by it pursuant hereto and to
give all
notices which may be required to be given on its behalf hereunder;
|
2.2 |
a
legal opinion of the General Counsel and Secretary of the Guarantor
in a
form acceptable the Lender;
|
2.3 |
a
copy of this Amending Agreement signed by the Borrowers and the
Guarantor.
|
3. |
FEES
|
The
Guarantor must pay to the Lender a fee of US$35,000.
4. |
REPRESENTATIONS
AND WARRANTIES
|
The
Repeating Representations and Warranties set out in Clause 19.20 of the Facility
Agreement shall be deemed repeated by the Borrowers and the Guarantor on the
date of this Amending Agreement with reference to the facts and circumstances
then existing.
5. |
MISCELLANEOUS
|
5.1 |
All
capitalised terms not otherwise defined herein shall have the meaning
ascribed to them in the Facility
Agreement.
|
5.2 |
All
other terms and conditions of the Facility Agreement remain the
same.
|
5.3 |
This
Amending Agreement shall be governed by and construed in accordance
with
the laws of England and the parties hereto submit to the jurisdiction
of
the English courts.
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SIGNED
FOR AND ON BEHALF OF:-
THE
LENDER
|
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By:
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Xxxx
Xxxxx
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Director
|
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Address:
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000
Xxxxxxxxxxx, Xxxxxx XX0X 0XX
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Xxxxxxx
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||
Attention:
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Xxxx
Xxxxx
|
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HARSCO
FINANCE B.V.
|
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By:
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Xxxxx
X. Xxxxxxxx
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Xxxxxxxxx
X. Xxxxxxxxx
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Director
|
Director
|
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Address:
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Wenckebachstraat
1, 1951 JZ Velsen-Noord, Xxxxxxx 00
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0000
XX Xxxxxxxx
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Xxxxxxxxxxx
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Attention:
|
Financial
Manager
|
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HARSCO
INVESTMENT LIMITED
|
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By:
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Xxxxxxxxx
X. Xxxxxxxxx
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|
Director
|
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Address:
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Harsco
House, Regent Park, 000 Xxxxxxxx Xxxx
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Xxxxxxxxxxx,
Xxxxxx XX00 0XX
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Xxxxxxx
|
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Attention:
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M.R.G.
Hoad
|
|
HARSCO
CORPORATION
|
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By:
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Xxxxxxxxx
X. Xxxxxxxxx
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Senior
Vice President, Chief Financial Officer & Treasurer
|
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Address:
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XX
Xxx 0000
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Xxxx
Xxxx, XX 00000-0000
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Attention:
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X.X.
Xxxxx
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