AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT dated as of October 1, 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...
Exhibit 10.2
AMENDMENT
NO. 3 AND WAIVER
dated
as of
October
1, 2007
Among
ICO,
INC.,
BAYSHORE
INDUSTRIAL, L.P. and
ICO
POLYMERS NORTH AMERICA, INC.,
as
Borrowers,
KEYBANK
NATIONAL ASSOCIATION,
XXXXX
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
and
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Swing Line Lender
AMENDMENT NO. 3 AND WAIVER
TO CREDIT AGREEMENT
This
Amendment No. 3 and Waiver to Credit Agreement (this “Amendment”) is made
as of October 1, 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, XXXXX 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”);
(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”); and
(iv) XXXXX
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as the Swing
Line Lender.
RECITALS:
A. The
Borrowers, the Administrative Agent and the Lenders are parties to the Credit
Agreement, dated as of October 27, 2006, as amended by Amendment No. 1 and
Waiver to Credit Agreement, dated April 25, 2007 and Amendment No. 2 to Credit
Agreement, dated June 25, 2007 (as may be further amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”).
B. The
Borrowers, the Administrative Agent and the Lenders desire to further amend the
Credit Agreement as more fully set forth herein.
C. The
Borrowers have notified the Administrative Agent and the Lenders that the [____]
Guaranty (as defined below) violates the covenant on restrictive agreements,
which covenant is set forth in Section 7.08 of the Credit Agreement (the “Violation”). As
a result of the Violation, an Event of Default has occurred and is continuing
under Section 8.01(c) 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
1. New
Definition. The following definition shall be added to Section
1.01 of the Credit Agreement in the appropriate alphabetical order:
“[____] Guaranty” means the
Corporate Guaranty by ICO in favor of [_______], dated as of March 17, 2004, as
amended.
2. Amendment to Section
7.04. Section 7.04 of the Credit Agreement shall be amended to
add the following new subclause (j) thereto immediately following subclause
(i):
“(j) to
the extent constituting Indebtedness, Indebtedness of Bayshore and ICO pursuant
to the [____] Guaranty in an aggregate amount not to exceed
$10,000,000.”
3. Wavier 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 4 below, the
Existing Default upon the terms and conditions set forth herein.
4. Conditions
Precedent. The amendment and waiver set forth above shall
become effective upon the satisfaction of the following conditions precedent
(the “Amendment No. 3
Effective Date”):
(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
(d) each
Subsidiary Guarantor has executed and delivered to the Administrative Agent the
Subsidiary Guarantor Acknowledgment and Agreement attached hereto.
5. 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 organizational documents of such Borrower or any law
applicable to such Borrower; (d) after giving effect to the waiver set forth in
section 3 above, no Default or Event of Default exists under the Credit
Agreement, nor will any occur immediately after the execution and delivery of
this Amendment or by the performance or observance of any provision hereof; and
(e) this Amendment constitutes a valid and binding obligation of such Borrower
in every respect, enforceable in accordance with its terms.
2
6. Credit Agreement
Unaffected. Each reference that is made in the Credit
Agreement or any other Loan Document shall hereafter be construed as a reference
to the Credit Agreement as amended hereby. Except as herein otherwise
specifically provided, all provisions of the Credit Agreement shall remain in
full force and effect and be unaffected hereby.
7. Counterparts. This
Amendment may be executed in any number of counterparts, by different parties
hereto in separate counterparts and by facsimile signature, each of which when
so executed and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same agreement.
8. Entire
Agreement. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other
instruments, agreements and documents executed and delivered in connection with
this Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral
agreements among the parties hereto relating to the subject matter hereof or any
other subject matter relating to the Credit Agreement.
9. Governing Law; Submission to
Jurisdiction; Venue; Waiver of Jury Trial.
(a) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. TO THE FULLEST EXTENT
PERMITTED BY LAW, THE BORROWERS HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY
CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF TEXAS
GOVERNS THIS AMENDMENT. Any legal action or proceeding with respect
to this Amendment may be brought in any court located in Xxxxxx County, Texas or
in any court of the United States for the Southern District of Texas, Houston
Division, and, by execution and delivery of this Amendment, each Borrower hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The
Borrowers hereby further irrevocably consent to the service of process out of
any of the aforementioned courts in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, to the
Borrower Representative at its address for notices pursuant to Section 11.05 of
the Credit Agreement, such service to become effective 30 days after such
mailing or at such earlier time as may be provided under applicable
law. Nothing herein shall affect the right of the Administrative
Agent or any Lender to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the Borrowers in any
other jurisdiction.
(b) The
Borrowers hereby irrevocably waive any objection that they may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Amendment brought in the courts
referred to in Section 36(a) above and hereby further irrevocably waive and
agree not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient
forum.
(c) EACH OF THE PARTIES TO THIS AMENDMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY HERETO HEREBY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY
3
WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS PARAGRAPH.
(Signature
pages follow.)
4
IN
WITNESS WHEREOF, this Amendment has been duly executed and delivered as of the
date first above written.
|
ICO,
INC.
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Chief
Financial Officer & Treasurer
|
|
|
BAYSHORE
INDUSTRIAL, L.P.
|
||
|
By:
|
Bayshore
Industrial GP, L.L.C.
|
|
|
Its:
|
General
Partner
|
|
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Chief
Financial Officer & Treasurer
|
|
|
ICO
POLYMERS NORTH AMERICA, INC.
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Senior
Vice President, Chief Financial Officer
|
|
|
&
Treasurer
|
||
|
KEYBANK NATIONAL
ASSOCIATION, as
|
||
|
Administrative
Agent and as a Lender
|
||
|
By:
|
/s/
Xxxxxxxx Xxxxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxxxx
|
|
|
Title:
|
Vice
President
|
|
|
XXXXX
FARGO BANK, NATIONAL
|
||
|
ASSOCIATION, as a
Lender
|
||
|
By:
|
/s/
Xxxx Xxxxxxx
|
|
|
Name:
|
Xxxx
Xxxxxxx
|
|
|
Title:
|
Vice
President
|
|
SUBSIDIARY GUARANTOR
ACKNOWLEDGMENT AND AGREEMENT
Each of
the undersigned (collectively, the “Subsidiary
Guarantors” and, individually, “Subsidiary
Guarantor”) consents and agrees to and acknowledges the terms of the
foregoing Amendment No. 3 and Waiver to Credit Agreement, dated as of October 1,
2007 (the “Amendment”). Each
Subsidiary Guarantor specifically acknowledges the terms of and consents to the
amendments and waiver set forth in the Amendment. Each Subsidiary
Guarantor further agrees that its obligations pursuant to the Subsidiary
Guaranty shall remain in full force and effect and be unaffected
hereby.
Each
Subsidiary Guarantor hereby waives and releases, to the fullest extent permitted
by applicable law, the Administrative Agent and each of the Lenders and their
respective directors, officers, employees, attorneys, affiliates, and
subsidiaries from any and all claims, offsets, defenses, and counterclaims of
which any of the Subsidiary Guarantors is aware, such waiver and release being
with full knowledge and understanding of the circumstances and effect thereof
and after having consulted legal counsel with respect thereto.
EACH
SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
SUBSIDIARY GUARANTOR ACKNOWLEDGMENT AND AGREEMENT OR THE AMENDMENT, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH SUBSIDIARY
GUARANTOR HEREBY CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PERSON WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
(Signature
page follows.)
IN
WITNESS WHEREOF, this Subsidiary Guarantor Acknowledgment and Agreement has been
duly executed and delivered as of the date of the Amendment.
|
ICO
GLOBAL SERVICES, INC.
|
||
|
By:
|
/s/
Xxxxxx Xxxx Xxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxx Xxxxxxx
|
|
|
Title:
|
President
|
|
|
ICO
P&O, INC.
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Treasurer
& Chief Financial Officer
|
|
|
ICO
TECHNOLOGY, INC.
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Senior
V.P., Treasurer & Chief Financial
|
|
|
Officer
|
||
|
WEDCO
TECHNOLOGY, INC.
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Treasurer
& Chief Financial Officer
|
|
|
WORLDWIDE
GP, L.L.C.
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Manager
|
|
|
WORLDWIDE
LP, L.L.C.
|
||
|
By:
|
ICO
Global Services, Inc.
|
|
|
Its
Sole Member
|
||
|
By:
|
/s/
Xxxxxx Xxxx Xxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxx Xxxxxxx
|
|
|
Title:
|
President
|
|
|
ICO
WORLDWIDE, L.P.
|
||
|
By:
|
Worldwide
GP, L.L.C.
|
|
|
Its
General Partner
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Manager
|
|
|
BAYSHORE
INDUSTRIAL GP, L.L.C.
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Treasurer
& Chief Financial Officer
|
|
|
BAYSHORE
INDUSTRIAL LP, L.L.C.
|
||
|
By:
|
ICO
Global Services, Inc.
|
|
|
Its
Sole Member
|
||
|
By:
|
/s/
Xxxxxx Xxxx Xxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxx Xxxxxxx
|
|
|
Title:
|
President
|
|
|
ICO
POLYMERS, INC.
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Treasurer
& Chief Financial Officer
|
|
|
BAYSHORE
RE HOLDINGS, INC.
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Treasurer
& Chief Financial Officer
|
|
|
CHINA
RE HOLDINGS, INC.
|
||
|
By:
|
/s/
Xxx X. Xxxx
|
|
|
Name:
|
Xxx
X. Xxxx
|
|
|
Title:
|
Treasurer
& Chief Financial Officer
|
|
