EXHIBIT 10(a)(iii)
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THIS AMENDING AGREEMENT is made the 6th day of MARCH 2003
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
WESTMINISTER BANK PLC (the "LENDER")
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 a
side letter dated 19 December 2001, (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
With effect from the Effective Date the following amendments shall be made to
the Facility Agreement:
1.1 The definition of "COMMITMENT" in Clause 1.1 of the Facility Agreement shall
be deleted in its entirety and replaced with:
"COMMITMENT" means US$25,000,000, 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), 13 December 2003 or, if extended
in accordance with Clause 7.3 (Extension), the date provided for in
Clause 7.3 (Extension); or
1.3 The definition of "MARGIN" in Clause 1.1 of the Facility Agreement shall be
deleted in its entirety and replaced with:
"MARGINS" means:
(a) during any period on or before any exercise of the Term-Out Option
under Clause 7.2, 0.425 per cent. per annum; and
(b) during any period after execise of the Term-Out Option under Clause
7.2, 0.675 per cent. per annum.
1.4 Clause 7.2(b)(i) 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 13 December 2004;
1.5 Clause 7.2(b)(iv) 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 13 December 2004.
1.6 Clause 19.6 shall be deleted in its entirety and replaced with:
Harsco Fiance B.V. qualifies as a credit institution (kredietinstelling) as
defined in the Dutch 1992 Act on the Supervision of the Credit System (Wet
toezicht kredietwezen 1992). Harsco Finance B.V. also qualifies as a finance
company (financieringsmaatschappij) which term is used by the Dutch Central Bank
in the context of such Dutch 1992 Act on the Supervision of the Credit System
(Wet toezicht kredietwezen 1992), and is on that basis exempt from supervision
by the Dutch Central Bank as arranged for in such Act, in accordance with the
Exemption Regulation pursuant to the Dutch 1992 Act on the Supervision of the
Credit System, date 26 June 2002 (Vrijstellingsregeling Wtk 1992, Stcrt. 2002,
120).
1.7 Clause 19.11 shall be deleted in its entirety and replaced with:
The report on Form 10-K for the period ending December 31, 2001, and the Report
on Form 10-Q for the period ending September 30, 2002, 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
Guarator'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 copy of this Amending Agreement signed by the Borrowers and the
Guarantor; and
2.3 written confirmation from Boekel De Neree lawyes confirming that their
legal opinion dated 22 December 2000 provided in respect of Harsco
Finance N.V. remains valid.
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 our in Clause 19.20 of the
Facility Agreement shall be deemed repeated by the Borrowers and the Guarantor
on the date of the 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.
SIGNED FOR AND ON BEHALF OF:-
THE LENDER
By: /s/ Xxxxxxx Xxxxxx
Address: 000 Xxxxxxxxxxx Xxxxxx
Attention:
HARSCO FINANCE B.V.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
Address: Wenckebachstraat 1, 1951 JZ Xxxxxx-Xxxxx
Xxxxxxx 00, 0000 XX Xxxxxxxx, Xxxxxxxxxxx
Attention: Financial Manager
HARSCO INVESTMENT LIMITED
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
Address: Xxxxxx Xxxxx, Xxxxxx Xxxx, 000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxx XX00 0XX
Attention: X. X. Xxxxxxxx
HARSCO CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
Address: 350 Poplar Church Road, P.O. Box 8888
Camp Hill, Pennsylvania 17011, USA
Attention: X. X. Xxxxx
