1
EXHIBIT 10.4
THIRD AMENDMENT
TO
AMENDED AND RESTATED BUSINESS LOAN AGREEMENT
(RECEIVABLES AND INVENTORY)
This THIRD AMENDMENT TO AMENDED AND RESTATED BUSINESS LOAN AGREEMENT
(RECEIVABLES AND INVENTORY) (this "Amendment") is entered into effective as of
the 17th day of July, 1998, by and between BANK OF AMERICA TEXAS, N.A. ("Bank")
and ICO P&O, INC., a Delaware corporation ("Borrower").
Borrower is the surviving corporation of (i) the merger (the "First
Merger") between ICO, Inc., a Texas corporation ("Original Borrower") and ICO
Merger Sub, Inc., a Texas corporation, with ICO, Inc. being the surviving
corporation and changing its name to ICO P&O, Inc., and (ii) the merger (the
"Second Merger") between ICO P&O, Inc., a Texas corporation and ICO P&O, Inc.,
a Delaware corporation ("ICO Delaware") with ICO Delaware being the surviving
corporation. The First Merger is evidenced by the Certificate of Merger, Filed
in the Office of the Secretary of State of Texas on March 31, 1998, effective
April 1, 1998, and the Second Merger is evidenced by the Certificate of Merger,
dated April 1, 1998, filed in the Office of the Secretary of State of Delaware
on March 31, 1998 and Articles of Merger, dated March 31, 1998, filed in the
Office of the Secretary of State of Texas on March 31, 1998.
REFERENCE:
Reference is made to the AMENDED AND RESTATED BUSINESS LOAN AGREEMENT
(RECEIVABLES AND INVENTORY) dated as of February 21, 1997, by and between Bank
and Original Borrower, as amended by the following (as amended, including all
prior amendments described below, the "Credit Agreement"):
(a) that certain FIRST AMENDMENT TO AMENDED AND RESTATED
BUSINESS LOAN AGREEMENT (RECEIVABLES AND INVENTORY) entered into
effective as of June 2, 1997;
(b) that certain SUBSTITUTED FIRST AMENDMENT TO AMENDED AND
RESTATED BUSINESS LOAN AGREEMENT (RECEIVABLES AND INVENTORY) entered
into effective as of June 6, 1997; and
(c) that certain SECOND AMENDMENT TO AMENDED AND
RESTATED BUSINESS LOAN AGREEMENT (RECEIVABLES AND INVENTORY) entered
into effective as of August 29, 1997.
2
RECITALS
(a) Borrower is the successor to Original Borrower as a result
of the First Merger and the Second Merger; and
(b) Bank and Borrower are entering in to this Amendment to
acknowledge Borrower's succession to all rights and obligations of
Original Borrower and to again amend certain existing terms of the
Credit Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT
1.1 The definition of the term "Borrower" in the preamble of the
Credit Agreement is amended to mean Borrower as defined in this Amendment.
1.2 Subparagraph (a) of Article 1.2 of the Credit Agreement is
amended to read as follows:
(a) The account has resulted from the sale of goods or the
performance of services by Borrower or any subsidiary of Borrower
(each such subsidiary being herein called a "Pledging
Subsidiary") which has executed a Security Agreement (Receivables
and Inventory) on even date with that certain THIRD AMENDMENT TO
AMENDED AND RESTATED BUSINESS LOAN AGREEMENT (RECEIVABLES AND
INVENTORY) which amended this Agreement.
1.3 Article 1.2 of the Credit Agreement is amended to add a
subparagraph (n) to read as follows:
(n) no consent of any person or entity is required in connection with
any assignment of the account by Borrower.
1.4 The term "Expiration Date" contained in Section 2.2 of the Credit
Agreement is amended to mean April 17, 2000.
1.5 The date April 17,1999, contained in Section 2.4(b) of the Credit
Agreement is amended to be April 17, 2000.
1.6 Except as amended hereby, the Credit Agreement shall continue in
full force and effect in accordance with its provisions.
THIRD AMENDMENT- Page 2
3
2. ASSUMPTION OF OBLIGATIONS
Borrower hereby expressly assumes all obligations of Original Borrower
under the Credit Agreement and promises to Bank that Borrower will timely
perform all such obligations.
3. CONDITIONS PRECEDENT
The effectiveness of this Amendment is expressly conditioned upon
delivery to Bank of each of the following, each document to be in form and
content acceptable to Bank in its sole discretion:
3.1 Corporate Documents. Appropriate corporate documentation,
including without limitation resolutions of the Board of Directors of Borrower,
Guarantor (hereinafter defined) and of each Pledging Subsidiary approving the
execution, delivery and performance by such entities of this Amendment and all
documents executed in connection herewith.
3.2 Other Loan Documents. The following loan documents:
(a) Notice of Final Agreement. A fully executed Notice of Final
Agreement in compliance with Section 26.02 of the Texas Business and
Commerce Code.
(b) UCC Documents. Security Agreements and UCC-1 Financing
Statements executed by Borrower and each of the Pledging Subsidiaries
identified on Schedule I which is attached hereto.
(c) Guaranty. A Guaranty executed by ICO, INC., a Texas corporation
("Guarantor") that is Borrower's parent corporation.
3.3 Legal Opinion. An opinion of legal counsel to Borrower,
Guarantor and each Pledging Subsidiary.
3.4 Other Documentation. Such other documents as Bank may request.
4. MISCELLANEOUS.
4.1 Representations. Borrower represents and warrants that the
execution, delivery and performance by Borrower of this Amendment and the
Credit Agreement as amended hereby have been duly authorized by all necessary
corporate action and that this Amendment and the Credit Agreement as amended
hereby are legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with their terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors' rights generally, or by general principles of
equity limiting the availability of certain remedies.
THIRD AMENDMENT- Page 3
4
4.2 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement, and, except as expressly modified and superseded
by this Amendment, the terms and provisions of the Credit Agreement are
ratified and confirmed and shall continue in full force and effect. Borrower
and Bank agree that the Credit Agreement as amended shall continue to be legal,
valid, binding and enforceable in accordance with its terms.
4.3 Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Texas.
4.4 Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
4.5 Definitions. Capitalized terms used in this Amendment and not
otherwise defined in this Amendment shall have the meanings given them in the
Credit Agreement.
4.6 WAIVER OF JURY TRIAL. BORROWER AND BANK EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AMENDMENT, THE CREDIT AGREEMENT, THE OTHER
LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR ANY PARTICIPANT OR ASSIGNEE, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. BORROWER AND BANK EACH
AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AMENDMENT, THE CREDIT AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
4.9 Successors and Assigns. This Amendment, the Credit Agreement and
all documents executed in connection with or as security for the Credit
Agreement, as amended hereby (the "Security Documents") are binding on
Borrower's and Bank's successors and assignees. Borrower agrees that it may
not assign any of its rights or obligations under the Credit Agreement without
Bank's prior consent.
THIRD AMENDMENT- Page 4
5
4.10. Year 2000. Borrower represents that Borrower does not believe the
year 2000 problem will result in a material adverse change in Borrower's
business condition (financial or otherwise), operations, properties or
prospects, or ability to repay the credit.
IN WITNESS WHEREOF, Borrower and Bank have caused this Amendment to be
duly executed as of the day and year first above written.
BANK OF AMERICA TEXAS, N.A. ICO P&O, INC., a Delaware corporation,
formerly known as ICO, INC., a Texas
corporation
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxx
------------------------------- ------------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxxxxxx
----------------------------- ----------------------------------
Title: Vice President Title: President
---------------------------- ---------------------------------
THIRD AMENDMENT- Page 5
6
SCHEDULE I
ICO Worldwide, Inc.
ICO Permian, Inc.
Bayshore Industrial, Inc.
ICO Xxxxxxx (Canada)
SCHEDULE I TO
ICO THIRD AMENDMENT
TO LOAN AGREEMENT
