EXHIBIT 10.1
LIMITED WAIVER AND THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Limited Waiver and Third Amendment to Amended and Restated Credit
Agreement, dated as of November 8, 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 ("Xxxxxx" and collectively with BofA, Antares, GMAC,
LaSalle and Provident, the "Lenders").
WITNESSETH:
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;
WHEREAS, the parties hereto wish to waive certain Defaults under the
Credit Agreement as provided herein; and
WHEREAS, the parties hereto wish to amend the Credit Agreement as
provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Limited Waiver. Agent and Lenders hereby waive the Default under
Section 6.2 of the Credit Agreement solely to the extent that such provision was
violated for the twelve month period ending on September 30, 2001. This Limited
Waiver 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 Agent or 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).
2. Amendments to the Credit Agreement.
(a) Section 1.16(c) Prepayments of the Loans. Section 1.16(c)
is hereby amended and restated in its entirety to read as follows:
If the Borrower or any of its Subsidiaries shall at any time or from
time to time:
(i) make a Disposition; or
(ii) suffer an Event of Loss;
following the repayment of all reasonable expenses, if any, incurred by
the Agent in the collection or handling thereof, the remaining Net
Proceeds shall be applied in any manner determined by the Agent and the
Majority Lenders, in their sole discretion; provided that, if the
remaining Net Proceeds are less than $100,000, such remaining Net
Proceeds shall be applied in any manner determined by the Agent in its
sole discretion.
(b) Section 4.1 Financial Statements. Notwithstanding anything
in Sections 4.1(b) and (c) and 4.2(b) to the contrary, Borrower shall furnish
the December 31, 2001 financial statements and Compliance Certificate required
to be delivered pursuant to Sections 4.1(b) and (c) and 4.2(b) no later than
January 15, 2002.
(c) Section 4.20 Appraisals. Section 4.20(c) is hereby amended
by inserting the following sentence at the end thereof:
Notwithstanding the foregoing, at any time upon
Agent's request, Borrower agrees to obtain and
deliver to Agent new appraisals in form and substance
reasonably satisfactory to Agent of all of the
Collateral requested by Agent.
(d) Availability. The definition of "Availability" set forth
in Article 11 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Availability" means, at any time:
(i) the lesser of
(a) the Maximum Revolver Amount or
(b) the lesser of (I) the Borrowing Base plus the
Seasonal Overadvance Amount or (II) $20,000,000,
minus
(ii) the Aggregate Revolver Outstandings.
(e) LIBOR Borrowings. Unless the Agent and the Majority
Lenders consent in writing and notwithstanding any other provision in the Credit
Agreement to the contrary, from and after November 8, 2001 Borrower may not
request or elect any LIBOR Rate Loans.
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) Amendment Fee. The Borrower shall have paid to the Agent,
for the ratable benefit of the Lenders, an amendment fee in the amount of
$200,000.
(c) 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.
(d) 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.
(e) No Existing Default. After giving effect to this
Amendment, no Default or Event of Default shall exist as of the date hereof.
4. 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.
(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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