EXHIBIT 4
EXECUTION COPY
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of the 12th day of
September, 2003 (the "Second Supplemental Indenture") is made by and between
Harsco Corporation, a Delaware corporation (the "Company") and JPMorgan Chase
Bank, a New York banking corporation (the "Trustee").
WITNESSETH:
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WHEREAS, the Company and The Chase Manhattan Bank (National
Association), as trustee, entered into that certain Indenture (the "Indenture"),
dated as of May 1, 1985, as amended and supplemented by the First Supplemental
Indenture (as defined below) and this Second Supplemental Indenture, to provide
for the issuance by the Company from time to time of Securities, in one or more
series as provided therein;
WHEREAS, the Company, and The Chase Manhattan Bank (National
Association), as Resigning Trustee, and Chemical Bank, as Successor Trustee,
entered into that certain First Supplemental Indenture, dated as of April 12,
1995 (the "First Supplemental Indenture") to the Indenture, pursuant to which,
among other things, the Resigning Trustee resigned as trustee, paying agent and
security registrar under the Indenture, and the Company appointed Chemical Bank
as successor trustee, paying agent and security registrar under the Indenture;
WHEREAS, there was previously authenticated and delivered under Section
303 of the Indenture, $150,000,000 (One Hundred Fifty Million Dollars) in
principal amount of 6% Notes due September 15, 2003 of the Company (the "1993
Notes");
WHEREAS, on the date hereof and contemporaneously herewith, payment in
the necessary amount has been deposited with the Trustee in trust for the
Holders of the 1993 Notes in respect of the Stated Maturity of such Securities;
WHEREAS, on the date hereof, and in consideration of the immediately
preceding clause, the 1993 Notes are no longer Outstanding Securities under the
Indenture;
WHEREAS, on the date hereof, the Trustee is authenticating and
delivering under Section 303 of the Indenture, $150,000,000 (One Hundred Fifty
Million Dollars) in principal amount of 5.125% Senior Notes due September 15,
2013 (the "2003 Notes") of the Company to be issued pursuant to an underwriting
agreement dated as of September 8, 2003 among the Company and the underwriters
named therein;
WHEREAS, this Second Supplemental Indenture, among other things, sets
forth the terms of the 2003 Notes pursuant to Section 301 of the Indenture;
WHEREAS, Section 901(5) of the Indenture provides that, without the
consent of any Holders, the Company, when authorized by Board Resolution, and
the Trustee, may enter into an indenture supplement to change or eliminate any
provisions of the Indenture, provided that any such changes or eliminations are
effective when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is entitled
to the benefit of such provision;
WHEREAS, pursuant to Section 901(5) of the Indenture, the provisions
set forth in this Second Supplemental Indenture shall modify and amend certain
provisions of the Indenture and form a part of the Indenture;
WHEREAS, the Company represents that all acts and things necessary to
constitute this Second Supplemental Indenture a valid, binding and enforceable
instrument have been done and performed, and the execution of this Second
Supplemental Indenture has in all respects been duly authorized, and the
Company, in the exercise of its legal rights and powers, is executing this
Second Supplemental Indenture; and
WHEREAS, the Company has heretofore delivered or is delivering
contemporaneously herewith an Officers' Certificate and an Opinion of Counsel
each stating that the execution and delivery of this Second Supplemental
Indenture comply with the provisions of Article Nine of the Indenture, and that
all conditions precedent provided for in the Indenture to the execution and
delivery of this Second Supplemental Indenture have been complied with;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt whereof is hereby acknowledged, the parties have executed and delivered
this Second Supplemental Indenture intending to be bound, and the Company
covenants and agrees with the Trustee for the equal and proportionate benefit of
the respective Holders, from time to time, of the Securities, as follows:
SECTION 1. DEFINITIONS.
(a) For all purposes of this Second Supplemental Indenture,
except as otherwise expressly provided or unless the context otherwise requires,
the terms used herein shall have the meanings assigned to them in the Indenture.
(b) For all purposes of the Indenture, the following terms
shall have the following meanings with respect to the terms of the 2003 Notes:
"Make-Whole Amount" means the excess of (i) the aggregate
present value, on the Redemption Date, of the principal being redeemed and the
amount of interest (exclusive of interest accrued to the Redemption Date) that
would have been payable on that principal amount if such redemption had not been
made, over (ii) the aggregate principal amount of notes being redeemed. For
purposes of the foregoing, present value shall be determined by discounting, on
a semi-annual basis, such principal and interest at the Reinvestment Rate, as
determined on the third business day preceding the date notice of redemption
shall be given, from the respective dates on which such principal and interest
would have been payable if such redemption had not been made.
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"Redemption Price" means the sum of (i) the principal amount
of any notes being redeemed plus accrued, but unpaid, interest to the Redemption
Date, and (ii) the Make-Whole Amount, if any.
"Reinvestment Rate: means 0.15% plus the arithmetic mean of
the yields under the heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed. For purposes
of the foregoing, where no maturity exactly corresponds to such maturity, yields
for the two established maturities most closely corresponding to such maturity
shall be calculated pursuant to the immediately preceding sentence and the
Reinvestment Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding each such relevant periods to the nearest month.
For purposes of determining the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole Amount
shall be used.
"Statistical Release" means the statistical release designated
"H.15(519) or any successor publication which is published weekly by the Federal
Reserve System and which establishes yields on actively traded U.S. Government
Securities adjusted to constant maturities; PROVIDED, HOWEVER, that if such
statistical release is not published at the time of any determination under the
Indenture, the Company shall designate another index deemed, in its sole
discretion, to be reasonably comparable.
SECTION 2. TERMS APPLICABLE TO THE 2003 NOTES. In accordance with
Section 301 of the Indenture, the 2003 Notes shall have the following terms
applicable to such series of Securities:
(a) The title of the 2003 Notes shall be the "5.125% Senior
Notes due September 15, 2013";
(b) The aggregate principal amount of the 2003 Notes to be
authenticated and delivered under the Indenture as of the date hereof shall
initially be $150,000,000. The Company may, without notice or consent of the
Holders of the 2003 Notes, issue additional notes having the same ranking,
interest rate, maturity and other terms as the 2003 Notes. Any such additional
notes could be considered part of the same series of notes issued under the
Indenture as the 2003 Notes;
(c) The principal of the 2003 Notes shall be due and payable
on September15, 2013 (the "Maturity Date");
(d) The 2003 Notes shall bear interest at a fixed annual
rate of 5.125%, to be paid semi-annually, in arrears, on March 15 and September
15 of each year, beginning on March 15, 2004, until the principal thereof is
paid or made available for payment (each such date, an "Interest Payment Date").
The March 1 and September 1 (whether or not a Business Day), as the case may be,
next preceding an Interest Payment Date shall be the "Regular Record Date" for
the
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interest payable on such Interest Payment Date. Interest shall be computed on
the basis of a 360-day year consisting of twelve 30-day months;
(e) Principal of and interest on the 2003 Notes will be
payable through the Corporate Trust Office of the Trustee in New York City, or
at such other Place or Places of Payment through the Paying Agent or Paying
Agents as the Company may designate from time to time; PROVIDED, HOWEVER, that,
at the option of the Company, payment of interest may be made by check mailed to
the address of the person entitled thereto at such address as shall appear in
the Security Register;
(f) Sections 401(B) and 403 of the Indenture shall be
applicable to the 2003 Notes;
(g) The 2003 Notes may be redeemed by the Company, at its
option, in whole or from time to time in part, prior to the Maturity Date, at a
price equal to the Redemption Price. In addition, in respect of any redemption
by the Company of the 2003 Notes, the second sentence of Section 1102 of the
Indenture shall be deemed to be amended to read, in its entirety, as follows:
"In case of any redemption at the election of the Company of
the 2003 Notes, the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of the 2003 Notes to be redeemed."
Except as set forth in the preceding sentence, Section 1102 of the Indenture
shall apply as set forth therein with respect to the 2003 Notes;
(h) There shall not be any sinking fund in respect of the
2003 Notes;
(i) The terms of the 2003 Notes shall include such other
terms as are set forth in the form of note attached as Exhibit A hereto and
shall be subject to such provisions of the Indenture applicable generally to all
series of Securities unless such provisions are expressly superseded hereunder.
SECTION 3. MODIFICATIONS TO THE PROVISIONS OF SECTION 501(5).
Subsection (5) of Section 501 of the Indenture is hereby amended to read, in its
entirety, as follows:
"(5) default or defaults under any bonds, debentures, notes or
other evidences of indebtedness (including default or defaults with respect to
Securities of any series other than that series) or under any mortgages,
indentures, note agreements or other instruments under which there may be
issued, or by which there may be secured or evidenced, indebtedness of the
Company (including this Indenture), whether such indebtedness now exists or
shall hereafter be created, which default or defaults shall have resulted in
such indebtedness, aggregating more than $20,000,000 becoming or being declared
due and payable prior to the date on which it would otherwise become due and
payable, and any such acceleration shall not be rescinded or annulled within ten
Business Days after written notice to the Company from the Trustee or to the
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Company and to the Trustee from the Holders of not less than 25 percent in
aggregate principal amount of the Outstanding Securities of that series; or"
SECTION 4. MODIFICATIONS TO THE PROVISIONS OF SECTION 902. The
first paragraph of Section 902 of the Indenture is hereby amended to read, in
its entirety, as follows:
"With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by Board Resolutions, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture shall, without consent of the Holder of each
Outstanding Security affected thereby;"
SECTION 5. MODIFICATIONS TO THE PROVISIONS OF SECTION 1005. The
last paragraph of Section 1005 of the Indenture is hereby amended to read, in
its entirety, as follows:
"Notwithstanding the foregoing provisions of this Section
1005, the Company and any one or more Restricted Subsidiaries may issue, assume
or guarantee Secured Debt which would otherwise be subject to the foregoing
restrictions in an aggregate amount which, together with all other Secured Debt
of the Company and its Restricted Subsidiaries which would otherwise be subject
to the foregoing restrictions (not including Secured Debt permitted to be
secured under subparagraphs (a) through (i), inclusive, above) and the aggregate
value of the Sale and Leaseback Transactions in existence at such time (not
including Sale and Leaseback Transactions the proceeds of which have been or
will be applied in accordance with Section 1006), does not at the time exceed
10% of Consolidated Net Tangible Assets."
SECTION 6. EFFECTIVENESS OF THIS SECOND SUPPLEMENTAL INDENTURE.
This Second Supplemental Indenture shall become effective on the date first
above written coincident with the time that the 1993 Notes shall no longer be
deemed to be Outstanding Securities under the Indenture.
SECTION 7. MISCELLANEOUS.
(a) Except as hereby expressly amended, the Indenture, as
supplemented by the First Supplemental Indenture, is in all respects ratified
and confirmed and all the terms, provisions and conditions thereof shall be and
remain in full force and effect.
(b) All the covenants, stipulations, promises and agreements
in this Second Supplemental Indenture contained by or on behalf of the Company
shall bind its successors and assigns, whether so expressed or not.
(c) This Second Supplemental Indenture shall be deemed to be
a contract made under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of said State.
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(d) If any provision of the Indenture as supplemented by the
First Supplemental Indenture and this Second Supplemental Indenture limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of or govern the Indenture, such latter
provision shall control. If any provision of the Indenture, modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to the Indenture as so modified or
to be excluded, as the case may be.
(e) This Second Supplemental Indenture may be executed in
any number of counterparts each of which shall be an original, but such
counterparts shall together constitute on and the same instrument.
(f) In case any provision in this Second Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of the Indenture shall not in any way
be affected or impaired thereby.
(g) The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Second
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which are solely made by the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date first above written.
HARSCO CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
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Title: Senior Vice President, Chief
Financial Officer and Treasurer
JPMORGAN CHASE BANK, AS TRUSTEE
By: /s/ Xxxxxxxx Xxxxx
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Title: Vice President
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EXHIBIT A
[Form of Note]
