UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________
FORM
8-K
____________________
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of
The
Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported) December 22, 2008
____________________
Commission
File Number 1-3970
HARSCO
CORPORATION
(Exact
name of registrant as specified in its charter)
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Delaware
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23-1483991
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
employer identification number)
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350
Poplar Church Road, Camp Hill, Pennsylvania
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17011
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant's telephone number,
including area code 717-763-7064
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(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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□
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
2.03
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Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
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Amendment
to Credit Facility
On
December 22, 2008, an amending agreement (the “Amending Agreement”), among
Harsco Finance B.V. and Harsco Investment Limited as borrowers, Harsco
Corporation as guarantor and the Royal Bank of Scotland plc acting as agent for
National Westminster Bank plc (the “Lender”) became effective. As of
the date of the Amending Agreement, the term of the credit facility originally
entered into among the parties on December 15, 2000 (the “Facility Agreement”)
has been extended, and the amount of the credit facility has been reduced to $30
million from $50 million. The reduction in amount accommodates the
Company’s current anticipated liquidity needs and reduces borrowing cost. The
Amending Agreement has further enhanced the Company’s strong liquidity position,
bringing total limits under various credit facilities to $700
million.
The
amended facility serves as back-up to the Company’s commercial paper programs
and also provides available financing for the Company’s European
operations. Borrowings under this facility are available in most
major currencies with active markets at interest rates based upon LIBOR plus a
margin.
As a
result of the Amending Agreement, (i) the final maturity date for any revolving
loan not converted into a term loan has been extended until December 10, 2009
(with such date subject to further extension); (ii) the final maturity date for
each term loan converted from a revolving loan has been extended to December 10,
2010; and (iii) the final maturity date for any further term loan requested has
been changed to December 10, 2010.
After
giving effect to the Amending Agreement, the Facility Agreement continues to
contain usual and customary affirmative and negative covenants and customary
events of default that would permit the lenders to accelerate the loans if not
cured within applicable grace periods, including the failure to make timely
payments under the Facility Agreement, the failure to satisfy covenants and
specified events of bankruptcy and insolvency.
The
foregoing description of the Amending Agreement and certain provisions of the
Facility Agreement do not purport to be complete and are qualified in their
entirety by reference to the full text of the Amending Agreement, which is
attached hereto as Exhibit 10.1, the full text of the Facility Agreement
previously filed with the Commission and by reference to the description of our
debt and credit agreements contained in the Company’s Form 10-K for the year
ended December 31, 2007, and Form 10-Q for the period ended September 30,
2008. From time to time, the Lender provides customary commercial and
investment banking services to the Company.
The
statements contained in this Current Report on Form 8-K that are not historical
facts are “forward-looking statements” within the meaning of Section 27A of
the Securities Act of 1933 and Section 21E of the Securities Exchange Act
of 1934. These forward-looking statements include statements regarding the
Company’s strong liquidity position. These forward-looking statements
are made subject to certain risks and uncertainties, which could cause actual
results to differ materially from those presented in these forward-looking
statements. Such risks and uncertainties include, but are not limited
to, the following: changes in the worldwide business environment in which the
Company operates; changes in the performance of stock and bond markets; changes
in governmental laws and regulations; market and competitive changes, including
pricing pressures, market demand and acceptance for new products, services, and
technologies; unforeseen business disruptions in one or more of the
many countries in which the Company operates; the seasonal nature of the
Company’s business; and the successful integration of the Company’s strategic
acquisitions. Readers are cautioned not to place undue reliance on
these forward-looking statements, which speak only as of the date hereof. The
Company undertakes no obligation to publicly revise these forward-looking
statements to reflect events or circumstances that arise after the date
hereof.
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Item
9.01.
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Financial
Statements and Exhibits
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(d) Exhibits.
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Exhibit
10.1.
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Amending
Agreement to the Credit Facility
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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HARSCO
CORPORATION
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(Registrant)
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DATE
December 29, 2008
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/s/ Mark
E. Kimmel
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Mark
E. Kimmel
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Senior
Vice President,
Chief Administrative
Officer,
General Counsel
and
Corporate Secretary
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Exhibit
Index
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Exhibit
10.1.
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Amending
Agreement to the Credit Facility
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EXHIBIT
10.1
THIS AMENDING AGREEMENT is
made the Twenty Second day of December 2008
BETWEEN
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(1)
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HARSCO FINANCE B.V. (a
company incorporated in The Netherlands) and HARSCO INVESTMENT LIMITED
(registered number 03985379) (each a "Borrower" and together
the "Borrowers");
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(2)
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HARSCO CORPORATION (a
corporation incorporated in the State of Delaware) (the "Guarantor");
and
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(3)
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THE ROYAL BANK OF SCOTLAND
plc acting as agent for NATIONAL WESTMINSTER
BANK Plc
(the "Lender")
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WHEREAS
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(A)
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The
Lender, the Borrowers and the Guarantor entered into a US$50,000,000
(subsequently reduced to US$30,000,000) credit facility dated 15 December
2000, as amended by side letters dated 19 December 2001, 6 March 2003, 19
December 2003, 17 December 2004, 12 December 2005, 8 December 2006, 31
January 2008 and 8 December 2008 (the "Facility Agreement");
and
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(B)
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The
Lender, the Borrowers and the Guarantor have agreed to make certain
amendments to the Facility
Agreement.
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NOW IT IS AGREED as
follows:
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1.
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AMENDMENTS
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With
effect from the Effective Date the following amendments shall be made to the
Facility Agreement:
1.1 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:
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(a)
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in
relation to a Revolving Loan not converted into a Term Loan pursuant to
Clause 7.2 (Term-Out), 10 December 2009 or, if extended in accordance with
Clause 7.3 (Extension), the date provided for in Clause 7.3 (Extension);
or
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1.2 The
definition of "Margin" in Clause 1.1 of the Facility Agreement shall be deleted
in its entirety and replaced with:
"Margin" means 1.50 per cent.
per annum.
1.3 Clause 7.2(b)(i) of the
Facility Agreement shall be deleted in its entirety and replaced
with:
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(i)
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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 9
December 2010;
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1.4 Clause
7.2(b)(iv) of the Facility Agreement shall be deleted in its entirety and
replaced with:
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(iv)
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the
Final Maturity Date for any further Term Loan requested, which date shall
be no later than 9 December 2010.
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1.5 A new
clause 7.2(c ) (v) shall be incorporated into the Facility Agreement as
follows:
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(v)
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The Borrowers shall
pay to the Lender a term out fee of 0.25 per cent. of each
Revolving Loan being converted to a Term Loans in accordance with this
Clause 7.2 (Term-Out).
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1.6
Clause 12.1(a) of the Facility
Agreement shall be deleted in its entirety and replaced with:
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(a)
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The
Guarantor shall pay to the Lender a commitment fee in Dollars computed at
the rate of 0.525 per cent. per annum on the Available Commitment from day
to day during the Availability
Period.
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1.7
Clause
24.1(b) shall be deleted in its entirety and replaced with:
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(b)
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transfer
by novation any of its rights and obligations, to any other bank or
financial institution or to a trust, fund or other entity which is
regularly engaged in or established for the purpose of making, purchasing
or investing in loans, securities or other financial assets (the "New
Lender").
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1.8
A new sub
clause 24.3(d) shall be incorporated into to the Facility Agreement as
follows
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(d)
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Any
Lender may also disclose the size and term of the Facility and the name of
each of the Obligors to any investor or a potential investor in a
securitisation (or similar transaction of broadly equivalent economic
effect) of that Lender’s rights or obligations under the Finance
Documents.
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1.9 A
new clause 24.4 shall be incorporated into to the Facility Agreement as
follows:
24.4 Security
over Lenders’ rights
In
addition to the other rights provided to the Lender under this Clause 24, the
Lender or any New Lender may without consulting with or obtaining consent from
the Borrowers or the Guarantor, at any time charge, assign or otherwise create
any Security Interest in or over (whether by way of collateral or otherwise) all
or any of its rights under any Finance Document to secure its obligations
including, without limitation:
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(a)
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any
charge, assignment or other Security Interest to secure obligations to a
federal reserve or central bank;
and
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(b)
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in
the case of any New Lender which is a fund, any charge, assignment or
other Security Interest granted to any holders (or trustee or
representatives of holders) of obligations owed, or securities issued, by
that New Lender as security for those obligations or
securities,
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except
that no such charge or assignment of a Security Interest shall:
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(i)
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release
the Lender or any New Lender from any of its obligations under the Finance
Documents or substitute the beneficiary of the relevant charge, assignment
or Security Interest for the Lender or New Lender as a party to any of the
Finance Documents; or
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(ii)
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require
any payments to be made by the Borrowers or grant to any person any more
extensive rights than those required to be made or granted to the Lender
or relevant New Lender under the Finance
Documents.
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2.
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EFFECTIVE
DATE
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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 to the Lender;
2.3 a
legal opinion from the in house legal advisers to Harsco Finance B.V. in the
Netherlands in a form acceptable to the Lender;
2.4 a
copy of this Amending Agreement signed by the Borrowers and the
Guarantor.
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3.
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FEES
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The
Guarantor must pay to the Lender a fee of US$67,500.
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4.
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REPRESENTATIONS
AND WARRANTIES
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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.
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5.
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MISCELLANEOUS
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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.
5.4
This
Amending Agreement is a Finance Document.
SIGNED
FOR AND ON BEHALF OF:-
THE
LENDER
By: J
Jones, Director
Address: 135
Bishopsgate, London EC2M 3UR
Attention: J
Jones
HARSCO
FINANCE B.V.
By:
M.H. Cubitt, Director
M.E.
Kimmel, Director
Address: Wenckebachstraat
1
1951 JZ Velsen-Noord, Postbus
83
1970 AB Ijmudien
Attention:
Financial Manager
HARSCO
INVESTMENT LIMITED
By:
M.H. Cubitt, Director
Address: Harsco
House
Regent Park, 299 Kingston
Road
Leatherhead, Surrey KT22
7SG
Attention:
M.R.G. Hoad
HARSCO
CORPORATION
By:
S.J. Schnoor, Senior Vice President & CFO
Address: 350
Poplar Church Road
Camp
Hill, PA 17011
Attention:
R.G. Yocum