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...

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,

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

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, 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”); 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 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 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.

5. 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.

6. 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.

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7. 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.

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 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 8(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

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(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 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.)

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/ Xxxx X. Xxxxxx
	Name:	Xxxx X. Xxxxxx
	Title:	Vice President

	XXXXX FARGO BANK, NATIONAL
	ASSOCIATION, as a Lender
	By:	/s/ Xxxx Xxxxxxx
	Name:	Xxxx X. 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. 1 and Waiver to Credit Agreement, dated as of April 25, 2007 (the “Amendment”). Each Subsidiary Guarantor specifically acknowledges the terms of and consents to the amendments 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 X. Xxxxxxx
	Name:	Xxxxxx X. 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:	Senior V.P., Treasurer & Chief Financial
		Officer
	WEDCO PETROCHEMICAL, 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:	Senior V.P., Treasurer & Chief Financial
		Officer