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EXHIBIT 10.39
SUPPLEMENTAL INDENTURE (12% SERIES C SENIOR NOTES)
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
October 23, 1997, among Central Arkansas Cold Storage-Texas, Inc. and Golden
Eagle Ice-Texas, Inc. (the "New Subsidiary Guarantors"), subsidiaries of
Packaged Ice, Inc. (or its successor), a Texas corporation (the "Company"),
Packaged Ice Leasing, Inc., Southco Ice, Inc., Mission Party Ice, Inc.,
Southwest Texas Packaged Ice, Inc. and Southwestern Ice, Inc., the Subsidiary
Guarantors (the "Existing Subsidiary Guarantors") and the Company under the
Indenture referred to below, and United States Trust Company of Texas, N.A., as
trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture (as such may be amended from time to time, the
"Indenture"), dated as of October 16, 1997, providing for the issuance of an
aggregate principal amount of $25,000,000 of 12% Series C Senior Notes due
April 15, 2004 (the "Securities"); and
WHEREAS, Section 4.21 of the Indenture provides that under certain
circumstances the Company is required to cause the New Subsidiary Guarantors to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Subsidiary Guarantors shall unconditionally guarantee all of the
Company's obligations under the Securities pursuant to a Subsidiary Guaranty on
the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 10.07 of the Indenture, the Trustee, the
Company and Existing Subsidiary Guarantors are authorized to execute and
deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
New Subsidiary Guarantors, the Company, the Existing Subsidiary Guarantors and
the Trustee mutually covenant and agree for the equal and ratable benefit of
the holders of the Securities as follows:
1. Definitions.
(a) Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except
as otherwise herein expressly provided or unless the context otherwise
requires: (i) the terms and expressions used herein shall have the same
meanings as corresponding terms and expressions used in the Indenture; and (ii)
the words "herein," "hereof" and "hereby" and other words of similar import
used in this Supplemental Indenture refer to this Supplemental Indenture as a
whole and not to any particular section hereof.
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2. Agreement to Guarantee. The New Subsidiary Guarantors hereby
agree, jointly and severally with all other Subsidiary Guarantors, to guarantee
the Company's obligations under the Securities on the terms and subject to the
conditions set forth in Article 10 of the Indenture and to be bound by all
other applicable provisions of the Indenture. From and after the date hereof,
the New Subsidiary Guarantors shall be Subsidiary Guarantors for all purposes
under the Indenture and the Securities.
3. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
5. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental
Indenture.
6. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction thereof.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
THE COMPANY
PACKAGED ICE, INC.
By:
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X. X. Xxxxx III, President
NEW SUBSIDIARY GUARANTORS:
CENTRAL ARKANSAS COLD GOLDEN EAGLE ICE-TEXAS, INC.
STORAGE-TEXAS, INC.
By: By:
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X. X. Xxxxx III, President X. X. Xxxxx III, President
EXISTING SUBSIDIARY GUARANTORS:
PACKAGED ICE LEASING, INC. SOUTHCO ICE, INC.
By: By:
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X. X. Xxxxx III, President X. X. Xxxxx III, President
MISSION PARTY ICE, INC. SOUTHWEST TEXAS
PACKAGED ICE, INC.
By: By:
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X. X. Xxxxx III, President X. X. Xxxxx III, President
SOUTHWEST TEXAS SOUTHWESTERN ICE, INC.
PACKAGED ICE, INC.
By: By:
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X. X. Xxxxx III, President X. X. Xxxxx III, President
TRUSTEE: UNITED STATES TRUST COMPANY
OF TEXAS, N.A., as Trustee:
By:
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Name:
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Title:
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