Exhibit
10.1
AMENDMENT NO. 1 AND
WAIVER
TO CREDIT
AGREEMENT
dated as
of
April 25,
2007
Among
ICO,
INC.,
BAYSHORE INDUSTRIAL, L.P.
and
ICO POLYMERS NORTH AMERICA,
INC.,
as
Borrowers,
KEYBANK NATIONAL
ASSOCIATION,
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
AND THE OTHER LENDING
INSTITUTIONS NAMED HEREIN,
as
Lenders,
and
KEYBANK NATIONAL
ASSOCIATION,
as an LC Issuer, Lead
Arranger, Bookrunner,
Administrative Agent and
Syndication Agent
AMENDMENT NO. 1 AND WAIVER TO
CREDIT AGREEMENT
This Amendment No. 1 and Waiver to Credit
Agreement (this “ Amendment ”) is made as of
April 25, 2007, by and among the following:
(i) ICO, INC., a Texas corporation (“
ICO ”), BAYSHORE INDUSTRIAL, L.P., a Texas limited
partnership (“ Bayshore ”), and ICO POLYMERS
NORTH AMERICA, INC., a New Jersey corporation (“ ICO
Polymers ,” and together with ICO and Bayshore, the
“ Borrowers ” and individually, each a “
Borrower ”);
(ii) KEYBANK NATIONAL ASSOCIATION, a national
banking association, WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, and the other lending institutions
from time to time party hereto (each a “ Lender
” and collectively, the “ Lenders ”);
and
(iii) KEYBANK NATIONAL ASSOCIATION, a national
banking association, as an LC Issuer, lead arranger, bookrunner,
and administrative agent (in such capacity as administrative agent,
the “ Administrative Agent ”).
RECITALS:
A. The Borrowers, the Administrative Agent and the
Lenders are parties to the Credit Agreement, dated as of October
27, 2006 (as amended, restated, supplemented or otherwise modified
from time to time, the “ Credit Agreement
”).
B. The Borrowers, the Administrative Agent and the
Lenders desire to amend the Credit Agreement to modify the
definition of “Term Loan Commitment Period” as more
fully set forth herein.
C. The Borrowers have notified the Administrative
Agent and the Lenders that the Australian Subsidiary has violated
the capital adequacy ratio covenant for the period ending March 31,
2007 (the “ Violation ”), which covenant is set
forth in the loan agreements between the Australian Subsidiary and
the Australian Lender. As a result of the Violation, an Event of
Default has occurred and is continuing under Section 8.01(e) of the
Credit Agreement (the “ Existing Default ”). The
Borrowers have requested, and the Administrative Agent and the
Lenders have agreed, to permanently waive the Existing Default as
more fully set forth herein.
D. Each capitalized term used herein and not
otherwise defined herein shall have the same meaning set forth in
the Credit Agreement.
AGREEMENT:
In consideration of the premises and mutual
covenants herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Administrative Agent and the Lenders agree as
follows:
1.
Amendment to Definition of
“Term Loan Commitment Period .” The definition of “Term Loan
Commitment Period” contained in Section 1.01 of the Credit
Agreement is hereby amended and restated in its entirety as
follows:
“ Term Loan Commitment Period
” means the period from and including the Closing Date
through and including the date that is 240 days after the Closing
Date.
2.
Waiver of Existing
Default . The Borrowers
have requested that the Administrative Agent and the Lenders
permanently waive the Existing Default. The Administrative Agent
and the Lenders hereby waive, effective upon the satisfaction of
the conditions precedent set forth in section 3 below, the Existing
Default upon the terms and conditions set forth herein.
3.
Conditions Precedent
. The amendment and waiver set forth
above shall become effective upon the satisfaction of the following
conditions precedent:
(a)
this Amendment has been executed by
each Borrower, the Administrative Agent and the Lenders, and
counterparts hereof as so executed shall have been delivered to the
Administrative Agent;
(b)
the Borrowers have paid all
reasonable out-of-pocket fees and expenses of the Administrative
Agent and of special counsel to the Administrative Agent that have
been invoiced on or prior to such date in connection with the
preparation, negotiation, execution and delivery of this
Amendment;
(c)
all representations and warranties
of the Loan Parties contained in the Credit Agreement or in the
other Loan Documents shall be true and correct in all material
respects with the same effect as though such representations and
warranties had been made on and as of the date of this Amendment,
except to the extent that such representations and warranties
expressly relate to an earlier specified date, in which case such
representations and warranties shall have been true and correct in
all material respects as of the date when made; and
(b)
each Subsidiary Guarantor has
executed and delivered to the Administrative Agent the Subsidiary
Guarantor Acknowledgment and Agreement attached hereto.
4.
Representations and
Warranties . Each
Borrower hereby represents and warrants to the Administrative Agent
and the Lenders that: (a) such Borrower has the legal power and
authority to execute and deliver this Amendment; (b) the officials
executing this Amendment have been duly authorized to execute and
deliver the same and bind such Borrower with respect to the
provisions hereof; (c) the execution and delivery hereof by
such Borrower and the performance and observance by such Borrower
of the provisions hereof do not violate or conflict with the
organizationa
