Exhibit 10(b)(ii)
Harsco Corporation
Harsco Finance BV
Harsco Investment Limited
x/x Xxxxxx Xxxxx
Xxxxxx Xxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxx
XX00 0XX
21st February 2002
Dear Sirs
$50,000,000 364 DAY MULTICURRENCY REVOLVING FACILITY AGREEMENT DATED 12 JANUARY
2001 (THE "FACILITY AGREEMENT")
Unless the context requires otherwise, terms defined in the Facility Agreement
shall have the same meaning in this letter.
1. AMENDMENTS TO FACILITY AGREEMENT
Further to your request to extend the Availability Period in accordance
with Clause 7.3 (Extension) of the Facility Agreement and to make
certain other amendments to the Facility Agreement, we confirm our
agreement, subject to receiving the documents and confirmations set out
in paragraph 3 (conditions precedent to extension) in form and substance
satisfactory to us, to amend the Facility Agreement as follows:
1.1 CLAUSE 1 (DEFINITIONS AND INTERPRETATION)
1.1.1 In the definition of "Final Maturity Date", the words "the date which is
364 days from the date of this Agreement" in the second line of
paragraph (a) shall be deleted and shall be replaced with the words "the
date which is 364 days from 12 January 2002".
1.1.2 The definition of "Original Financial Statements" shall be amended as
follows:
(a) the words "31 December 1999" shall be deleted from paragraph (a)
and shall be replaced by the words "31 December 2000";
(b) the words "30 September 2000" shall be deleted from paragraph
(b) and shall be replaced by the words "30 September 2001"; and
(c) the words "30 September 2000" shall be deleted from paragraph
(c) and shall be replaced by the words "30 September 2001".
1.2 CLAUSE 7.2 (TERM-OUT)
The words "five years" in each of sub-clause 7.2(b)(i) and sub-clause
7.2(b)(iv) shall be deleted and replaced with the words "two years".
1.3 CLAUSE 19.8(a) (TAXES)
The last sentence of Clause 19.8(a) (Taxes) shall be deleted and
replaced with the following:
"The Guarantor has not given any waiver of the statute of limitations
relating to payment of U.S. federal taxes, but has in the ordinary
course of business given extensions or waivers of the statute of
limitations relating to various state, local and foreign taxes or
impositions, none of which might reasonably be expected to result in a
Material Adverse Effect."
1.4 CLAUSE 19.11 (FINANCIAL STATEMENTS)
1.4.1 Clause 19.11(b) (Financial statements) shall be deleted and replaced
with the following:
"(b) other than in relation to the Guarantor, its Original Financial
Statements fairly represent in all material respects, its
financial condition as at such dates and the results of its
operations for the fiscal year and three-month period ended on
such dates (subject, in the case of the financial statements as
at 30 September 2001 to normal year-end audit adjustments) unless
expressly disclosed to the contrary in those financial statements
or in writing by the Guarantor to the Lender on or before the
date of this amendment."
1.4.2 The date referred to in Clause 19.11(c) shall be amended from "31
December 1999 to 31 December 2000".
1.4.3 A new Clause 19.11(d) shall be inserted as follows:
"(d) in relation to the Guarantor, the report on Form 10-K for the
period ending 31 December 2000 and the report on Form 10-Q for
the period ending 30 September 2001 filed by the Guarantor with
the U.S. Securities and Exchange Commission are the most current
10-K and 10-Q financial statements of the Guarantor and fairly
represent in all material respects the Guarantor's financial
position as at those dates."
1.5 CLAUSE 19.13 (NO PROCEEDINGS PENDING OR THREATENED)
References to the Guarantor's form 10-K and 10-Q dated 16 March 2000 and
14 November 2000 shall be replaced by 15 March 2001 and 8 November 2001
respectively. The words "and other than, in relation to the Guarantor
only, various on-going legal actions in which the Guarantor has been
named as a defendant further details of which are set out in the side
letter from the Guarantor to the Obligors dated 20th February 2002"
shall be inserted after the words "and filed with the Securities and
Exchange Commission" in Clause 19.13 (No proceedings pending or
threatened).
2
2 UP-FRONT FEE AND AMENDMENT TO MARGIN, COMMITMENT FEE AND UTILISATION FEE
By accepting the terms of this letter and in consideration for us
agreeing to extend the Availability Period under the Facility Agreement
and to amend the Facility Agreement as set out above, you agree:
(a) to pay an up-front fee of $35,000 payable to Citibank N.A on the
date of this letter;
(b) that the definition of "Margin" under Clause 1.1 in the Facility
Agreement shall be amended as follows:
(i) the figure set out in paragraph (a) shall be increased
to "0.5"; and
(ii) the figure set out in paragraph (b) shall be increased
to "0.6";
(c) that the Commitment Fee payable under Clause 12.1(a) shall be
increased to 0.20 per cent. per annum;
(d) that the Utilisation Fee payable under Clause 12.2(a) shall be
increased to 0.15 per cent. per annum; and
(e) that the increases in Margin, Commitment Fee and Utilisation Fee
referred to in paragraphs 2(b), 2(c) and 2(d) above shall apply
to any such Margin, Commitment Fees and Utilisation Fees payable
by the Obligor in relation to any period commencing on or after
12 January 2002.
3 CONDITIONS PRECEDENT TO AMENDMENT OF THE FACILITY AGREEMENT
The amendments set out in paragraph 1 above shall come into effect on
the date on which we confirm to you in writing that we have received all
of the documents, payments and confirmations listed below in form and
substance satisfactory to us:
(a) confirmation from the Obligors that the representations set out
in Clause 19 (Representations) of the Facility Agreement (as
amended by paragraph 1 above) are correct by reference to the
facts and circumstances then existing as at the date on which all
of the conditions set out in this paragraph 3 are satisfied and
that no Event of Default has occurred as at such date;
(b) confirmation that there has been no change in the constitutional
documents of each Obligor from the certified copies of such
constitutional documents which were provided to the Lender in
January 2001 or, if this is not the case, a certified copy of
each such constitutional document;
(c) a copy certified a true, complete and up to date copy by a duly
authorised officer of the relevant Obligor of a board resolution
of each Obligor approving the amendments to the Facility
Agreement set out in this letter and authorising a named person
or persons to sign this letter and any other letters,
confirmations or documents to be delivered by the Obligors
pursuant to this letter or the Facility Agreement (as amended by
this letter);
3
(d) a certificate of a duly authorised officer of the Obligors
setting out the names and signatures of the persons authorised to
sign this letter and any other related letters, confirmations or
documents on behalf of the Obligors; and
4 FACILITY AGREEMENT TO REMAIN IN FULL FORCE AND EFFECT
Save as expressly amended in this letter, the terms and conditions of
the Facility Agreement remain in full force and effect.
5 LETTER AS A FINANCE DOCUMENT
This letter shall be designated as a Finance Document for the purposes
of the Facility Agreement.
6 GOVERNING LAW AND JURISDICTION
This letter shall be governed by and construed in accordance with
English law and the Obligors expressly submit to the non-exclusive
jurisdiction of the courts of England and Wales.
7 COUNTERPARTS
This letter may be signed in any number of counterparts, all of which
when taken together shall constitute one and the same instrument.
8 CONFIRMATION
Please confirm your agreement to the terms of this letter and please
confirm the matters set out in paragraphs 3(a) and 3(b) above by
countersigning and returning to us the enclosed copy of this letter.
4
Yours sincerely,
/S/ Joronne X. Xxxxx
--------------------------------
for and on behalf of
CITIBANK, N.A.
We confirm our agreement to the above and we confirm the matters set out in
paragraph 3(a) and 3(b) above:
For and on behalf of
HARSCO CORPORATION
/S/ Xxxxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President, Chief
Financial Officer & Treasurer
For and on behalf of
HARSCO FINANCE B.V.
/S/ Xxxxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Director
For and on behalf of
HARSCO INVESTMENT LIMITED
/S/ Xxxxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Director
5
