EXHIBIT 10.9
FIRST AMENDMENT AND LIMITED WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment and Limited Waiver to Amended and Restated
Credit Agreement, dated as of February 28, 2001 (this "Amendment") is among
PACKAGED ICE, INC. (the "Borrower"), BANK OF AMERICA, N.A., individually as a
Lender ("BofA") and as a co-agent and the administrative agent (the "Agent"),
ANTARES CAPITAL CORPORATION, as a Lender ("Antares") and as a co-agent, GMAC
BUSINESS CREDIT, LLC, as a Lender ("GMAC"), LASALLE BUSINESS CREDIT, INC., as a
Lender ("LaSalle"), THE PROVIDENT BANK, as a Lender ("Provident"), and XXXXXX
TRUST AND SAVINGS BANK, as a Lender (collectively with BofA, Antares, GMAC,
LaSalle and Provident, the "Lenders").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders are parties to that
certain Amended and Restated Credit Agreement dated as of November 28, 2000 (as
amended, restated, modified and otherwise supplemented from time to time, the
"Credit Agreement"; capitalized terms not otherwise defined herein having the
definitions provided therefore in the Credit Agreement) and to certain other
documents executed in connection with the Credit Agreement; and
WHEREAS, the parties hereto wish to amend Section 9.8 of the
Credit Agreement as provided herein; and
WHEREAS, the parties hereto wish to acknowledge compliance on the
part of Borrower with the Post-Closing Matters Agreement (as defined below) as
provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. AMENDMENT. The parties hereby amend Section 9.8(a) of the
Credit Agreement by inserting the phrase "(or any nonratable part to the extent
such assignment and delegation is made by a Lender to a trust, limited or
general partnership, limited liability company or corporation, or other limited
purpose entity formed for the purpose of effecting a securitization of, among
other things, the Loans and which is an Affiliate of, or is managed or advised
by, a Lender)" immediately after the phrase "ratable part" in the sixth line
thereof.
2. LIMITED WAIVER.
(a) Subject to the conditions set forth herein, the parties hereby
agree that to the extent the obligations of the Borrower arising under that
certain Post-Closing Matters Agreement, dated November 28, 2000, among the
Borrower and the Agent (the "Post-Closing Agreement") have not been satisfied,
the Events of Default arising therefrom are hereby waived, and the Borrower
shall have no further obligations thereunder.
(b) The limited waiver set forth in Section 2(a) of this Amendment
shall be limited precisely as written and shall not be deemed or otherwise
construed to (i) constitute a waiver of any other Default or Event of Default or
(ii) prejudice any right, power or remedy which the Agent or the Lenders may now
have or may have in the future under or in connection with the Credit Agreement
or any other Loan Document (after giving effect to this limited waiver).
3. CONDITIONS PRECEDENT. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions precedent:
(a) AMENDMENT. The Borrower shall have executed and delivered this
Amendment.
(b) PAYMENT OF FEES. The Borrower shall pay all accrued and unpaid
fees, costs and expenses to the extent then due and payable, together with
Attorney Costs of the Agent, including, without limitation, costs and expenses
incurred in connection with this Amendment.
(c) OTHER DOCUMENTS. The Borrower shall, and shall cause its
Subsidiaries to execute and deliver such other approvals, opinions, documents
or materials as the Agent may reasonably request.
(d) NO EXISTING DEFAULT. After giving effect to this
Amendment, no Default or Event of Default shall exist as of the date hereof.
4. COVENANT RELATING TO POST-CLOSING AGREEMENT. Notwithstanding
Section 2(a) hereof, Borrower shall use its commercially reasonable efforts to
remove all liens with respect to real property of the Borrower and its
Subsidiaries as listed on Exhibit 1 of the Post-Closing Agreement.
5. MISCELLANEOUS
(a) CAPTIONS. Section captions used in this Amendment are for
convenience only, and shall not affect the construction of this Amendment.
(b) GOVERNING LAW. This Amendment shall be a contract made
under and governed by the laws of the State of Texas, without regard to
conflict of laws principles.
(c) COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Amendment.
(d) SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
the Borrower, the Agent and the Lenders and their respective successors and
assigns, and shall inure to the sole benefit of the Borrower, the Agent and the
Lenders and the successors and assigns of the Borrower, the Agent and the
Lenders.
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(e) REFERENCES. Any reference to the Credit Agreement contained in
any notice, request, certificate, or other document executed concurrently with
or after the execution and delivery of this Amendment shall be deemed to include
this Amendment unless the context shall otherwise require.
(f) CONTINUED EFFECTIVENESS. Notwithstanding anything contained
herein, the terms of this Amendment are not intended to and do not serve to
effect a novation as to the Credit Agreement. The Credit Agreement as amended
hereby and each of the Loan Documents remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
PACKAGED ICE, INC., as the Borrower
By:
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Its:
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BANK OF AMERICA, N.A., as the Agent and a
Lender
By:
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Its:
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ANTARES CAPITAL CORPORATION, as a Lender
By:
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Its:
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GMAC BUSINESS CREDIT, LLC, as a Lender
By:
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Its:
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LASALLE BUSINESS CREDIT, INC., as a
Lender
By:
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Its:
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XXXXXX TRUST AND SAVINGS BANK, as a Lender
By:
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Its:
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THE PROVIDENT BANK, as a Lender
By:
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Its:
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