EXHIBIT 10(b)
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EXECUTION COPY
AMENDMENT NO. 2 (this "Amendment") dated as
of August 15, 2003, to the FIVE-YEAR CREDIT AGREEMENT
dated as of September 29, 2000 (the "Credit
Agreement"), among HARSCO CORPORATION, a Delaware
corporation (the "Company"), the LENDERS referred to
therein (the "Lenders"), and JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank), as
administrative agent for the Lenders (in such
capacity, the "Administrative Agent"). Capitalized
terms used but not otherwise defined herein shall
have the meanings assigned to them in the Credit
Agreement.
W I T N E S S E T H
WHEREAS, pursuant to the Credit Agreement, the Lenders have
extended credit to the Company pursuant to the terms and subject to the
conditions set forth therein.
WHEREAS, the Company has requested that the Credit Agreement
be amended as set forth herein.
WHEREAS, the Required Lenders are willing so to amend the
Credit Agreement pursuant to the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Amendment to Section 3.09 of the Credit Agreement.
Section 3.09 of the Credit Agreement is hereby amended by deleting the last
sentence thereof and substituting in lieu thereof the words:
"The Company has in the ordinary course of business given
extensions or waivers of the statutes of limitations relating to payment of
U.S. Federal taxes and relating to various state, local and foreign taxes
or impositions, none of which might reasonably be expected to result in a
Material Adverse Effect."
SECTION 2. Addition to Article X of the Credit Agreement.
Article X of the Credit Agreement is hereby amended by inserting the following
Section at the end thereof:
"SECTION 10.17. Tax Disclosure. Notwithstanding anything
herein to the contrary, each Borrower, each Lender and the Agent (and
any employee, representative or other agent of any of the foregoing)
may disclose to any and all persons, without limitation of any kind,
the U.S. federal income tax treatment and the U.S. federal income tax
structure of the transactions contemplated hereby and all materials of
any kind (including opinions or other tax analyses) that are provided
to any of the foregoing relating to such tax treatment and tax
structure. However, no disclosure of any information relating to such
tax treatment or tax structure may be made to the extent nondisclosure
is reasonably necessary in order to comply with applicable securities
laws."
SECTION 3. Representations and Warranties. The Company
represents and warrants to each of the Lenders and the Administrative Agent
that, after giving effect to this Amendment:
(a) The representations and warranties set forth in Article
III of the Credit Agreement are true and correct in all material respects with
the same effect as if made on and as of the date hereof, except to the extent
such representations and warranties expressly relate to an earlier date, in
which case such representations and warranties were true and correct as of such
earlier date.
(b) The Borrowers are in compliance with the covenants set
forth in Article V and Article VI of the Credit Agreement as of the date hereof.
(c) No Event of Default or Default has occurred and is
continuing.
SECTION 4. Conditions to Effectiveness. This Amendment shall
become effective as of the date first written above provided that on or prior to
such date the Administrative Agent shall have received counterparts hereof, duly
executed and delivered by the Company and the Required Lenders.
SECTION 5. Effectiveness. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Administrative Agent, the Syndication Agent or the Documentation
Agent under the Credit Agreement, and shall not alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. Nothing herein shall be
deemed to entitle the Company to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement in similar or
different circumstances. This Amendment shall apply and be effective only with
respect to the provisions of the Credit Agreement specifically referred to
herein. As used in the Credit Agreement, the terms "Agreement", "herein",
"hereunder", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Credit Agreement as modified hereby.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be an original but all of which,
when taken together, shall constitute but one instrument. Delivery of an
executed counterpart of a signature page of this Amendment by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 8. Expenses. The Company agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx LLP, counsel for the Administrative Agent.
SECTION 9. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
date first above written.
HARSCO CORPORATION,
by:
/s/ Xxxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Senior V.P., CFO & Treasurer
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by:
/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
SIGNATURE PAGE to AMENDMENT
NO. 2 dated as of August
15, 2003, to the HARSCO
CORPORATION FIVE-YEAR
CREDIT AGREEMENT dated as
of September 29, 2000
To approve Amendment No. 2 to the Five-Year Credit Agreement:
Name of Institution: JPMorgan Chase Bank
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by:
/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
Name of Institution: Citicorp North America, Inc.
by:
/s/ Xxxxxxx X. Xxxxxxx, III
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Name: Xxxxxxx X. Xxxxxxx, III
Title: Managing Director
Name of Institution: Manufacturers and Traders Trust Company
by:
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Officer
Name of Institution: PNC Bank, National Association
by:
/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Name of Institution: SunTrust Bank
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by:
/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title:
Name of Institution: The Bank of Nova Scotia
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by:
/s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Managing Director
