LIMITED CONSENT AGREEMENT dated as of December 1, 2009 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...
dated
as of
December
1, 2009
Among
ICO,
INC.,
BAYSHORE
INDUSTRIAL, L.P. and
ICO
POLYMERS NORTH AMERICA, INC.,
as
Borrowers,
KEYBANK
NATIONAL ASSOCIATION,
▇▇▇▇▇
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
This
Limited Consent Agreement (this “Agreement”) is made
as of December 1, 2009, 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, ▇▇▇▇▇ 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:
WHEREAS,
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, Amendment No. 2 to Credit
Agreement, dated as of June 25, 2007, Amendment No. 3 to Credit Agreement, dated
as of October 1, 2007, Amendment No. 4 to Credit Agreement, dated as of May 2,
2008 and Amendment No. 5 to Credit Agreement, dated as of March 24, 2009 (as may
be further amended, restated, supplemented or otherwise modified from time to
time, the “Credit
Agreement”); and
WHEREAS,
the Borrowers have notified the Administrative Agent and the Lenders that the
board of directors and/or shareholders of ICO plan to consider, and may approve,
a merger transaction (the “Proposed Merger”) the result of which approval will
result in a Change of Control under the Credit Agreement; and
WHEREAS,
the approval by the board of directors and/or shareholders of the Proposed
Merger would each constitute an Event of Default under Section 8.01(j) of the
Credit Agreement.
THEREFORE,
the Borrowers have requested, and the Administrative Agent and the Lenders have
agreed, subject to the terms and conditions set forth herein, to consent to the
approval by the board of directors and/or shareholders of ICO of the Proposed
Merger, as more fully set forth herein. 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. Consent. Subject
to Section 3 below, the Administrative Agent and the Lenders hereby consent to
the approval by the board of directors and/or shareholders of ICO of the
Proposed Merger, effective upon the satisfaction of the conditions precedent set
forth in Section 2 below, and upon the further terms and conditions set forth
herein.
2. Conditions
Precedent. The consents set forth above shall become effective
upon the satisfaction of the following conditions precedent:
(a) this
Agreement 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) no
Default or Event of Default exists as of the date of this
Agreement;
(c) the
Borrowers have paid (i) to each Lender executing this Agreement, a consent fee
in the amount of $5,000 and (ii) 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 Agreement;
(d) 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 Agreement, 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
(e) each
Subsidiary Guarantor has executed and delivered to the Administrative Agent the
Subsidiary Guarantor Acknowledgment and Agreement attached hereto.
3. Consent
Conditional. The consent set forth in Section 1 above shall be
revoked, automatically and without further action required by the Administrative
Agent or any of the Lenders, if (a) the Proposed Merger is not consummated by
September 1, 2010, (b) prior to or concurrently with the consummation of the
Proposed Merger, the Credit Agreement is not terminated and all Obligations
thereunder are not paid, discharged and satisfied in full, including the
reimbursement or cash collateralization of any outstanding Letters of Credit, in
each case in a manner satisfactory to both the Administrative Agent and the
Lenders or (c) any Default or Event of Default occurs.
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 Agreement; (b) the
officials executing this Agreement 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) no Default or Event of Default exists under the
Credit Agreement, nor will any occur immediately after the execution and
delivery of this Agreement or by the performance or observance of any provision
hereof; and (e) this Agreement constitutes a valid and binding obligation of
such Borrower in every respect, enforceable in accordance with its
terms.
5. Credit Agreement
Unaffected. Except as set forth herein, the Credit Agreement
remains in full force and effect and is unaffected hereby. Except as
expressly set forth herein, this Agreement
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shall not
operate as a modification or waiver of any provision of the Credit Agreement or
any other Loan Document.
6. Counterparts. This Agreement 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.
7. Entire
Agreement. This Agreement is specifically limited to the
matters expressly set forth herein. This Agreement and all other
instruments, agreements and documents executed and delivered in connection with
this Agreement 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 Agreement, 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.
8. 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 AGREEMENT. Any legal action or proceeding with respect
to this Agreement may be brought in any court located in ▇▇▇▇▇▇ 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 Agreement, 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 Agreement brought in the courts
referred to in Section 7(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
3
(c) EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT 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 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 Agreement has been duly executed and delivered as of the
date first above written.
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ICO,
INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Chief
Financial Officer & Treasurer
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BAYSHORE
INDUSTRIAL, L.P.
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By:
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Bayshore
Industrial GP, L.L.C.
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Its:
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General
Partner
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Vice
President, Chief Financial Officer &
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Treasurer
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ICO
POLYMERS NORTH AMERICA, INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Sr.
Vice President, Chief Financial Officer &
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Treasurer
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KEYBANK NATIONAL
ASSOCIATION, as
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Administrative
Agent and as a Lender
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇
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Name:
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▇▇▇▇▇
▇. ▇▇▇
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Title:
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Assistant
Vice President
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▇▇▇▇▇
FARGO BANK, NATIONAL
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ASSOCIATION, as a
Lender
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Title:
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Vice
President
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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 Limited Consent Agreement, dated as of December 1, 2009 (the “Agreement”). Each
Subsidiary Guarantor specifically acknowledges the terms of and consents to the
waiver set forth in the Agreement. 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 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 AGREEMENT, 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 Agreement.
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ICO
GLOBAL SERVICES, INC.
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
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Title:
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President
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ICO
P&O, INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Chief
Financial Officer & Treasurer
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ICO
TECHNOLOGY, INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Vice
President, Chief Financial Officer &
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Treasurer
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WEDCO
TECHNOLOGY, INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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President,
Chief Financial Officer &
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Treasurer
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WORLDWIDE
GP, L.L.C.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Manager,
President & Treasurer
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WORLDWIDE
LP, L.L.C.
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By:
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ICO
Global Services, Inc
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Its
Sole Member
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Title:
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President
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BAYSHORE
INDUSTRIAL GP, L.L.C.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Vice
President, Chief Financial Officer &
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Treasurer
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BAYSHORE
INDUSTRIAL LP, L.L.C.
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By:
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ICO
Global Services, Inc.
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Its
Sole Member
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
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Title:
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President
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ICO
POLYMERS, INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Vice
President, Chief Financial Officer &
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Treasurer
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BAYSHORE
RE HOLDINGS, INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Vice
President, Chief Financial Officer &
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Treasurer
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CHINA
RE HOLDINGS, INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Vice
President, Chief Financial Officer &
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Treasurer
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