EXHIBIT 10.22
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
Second Amendment, dated as of February 19, 2002 (this "Amendment"), to
the Second Amended and Restated Credit Agreement, dated as of December 27, 2001,
as amended by the First Amendment dated as of January 30, 2002 (as so amended,
the "Credit Agreement") by and among Packaged Ice, Inc., a Texas corporation
(the "Borrower"), the lenders from time to time party thereto (each a "Lender"
and collectively, the "Lenders"), Ableco Finance LLC, a Delaware limited
liability company ("Ableco"), as collateral agent for the Lenders (in such
capacity, the "Collateral Agent") and The CIT Group/Business Credit, Inc., a New
York corporation ("CIT"), as successor in interest to Ableco as administrative
agent for the Lenders (in such capacity, the "Administrative Agent" and together
with the Collateral Agent, each an "Agent" and collectively, the "Agents").
RECITALS
The Borrower, the Lenders and the Agents have agreed to amend the
definition of the term "Material Adverse Effect" contained in the Credit
Agreement. In consideration of good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions.
All capitalized terms used herein and not otherwise defined herein are
used herein as defined in the Credit Agreement.
2. Material Adverse Effect. Clause (i) of the definition of the term
"Material Adverse Effect" in Section 1.01 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(i) the operations, business, assets, properties or condition
(financial or otherwise) of the Loan Parties, taken as a whole, which
results in either (A) a decline in consolidated revenues of the Loan
Parties in an amount equal to 7.5% or more of the immediately preceding
twelve months consolidated revenues or (B) an obligation to pay money
in an amount of $2,500,000 or more, other than obligations otherwise
permitted to be incurred by the terms of this Agreement or any other
Loan Document and obligations incurred by the Loan Parties in the
ordinary course of their business consistent with past practice,"
3. Conditions to Effectiveness. This Amendment shall become effective
(the "Amendment Effective Date") upon satisfaction in full of the following
conditions precedent:
(a) The representations and warranties contained in this Amendment,
Article VI of the Credit Agreement and the other Loan Documents shall be correct
on and as of the date of this Amendment as though made on and as of such date
(except where such representations and warranties relate to an earlier date in
which case such representations and warranties shall be true and correct as of
such earlier date); no Default or Event of Default shall have occurred and be
continuing on the date of this Amendment, or result from this Amendment becoming
effective in accordance with its terms.
(b) The Collateral Agent shall have received (i) counterparts of
this Amendment that bear the signatures of each of the Borrower and the Lenders
and (ii) counterparts of an Acknowledgement and Consent, in the form of Annex I
to this Amendment, that bear the signature of each Guarantor.
(c) All legal matters incident to this Amendment shall be
satisfactory to the Agents and their counsel.
4. Borrower Representations and Warranties. The Borrower represents and
warrants to the Lenders as follows:
(a) The Borrower (i) is duly organized, validly existing and in
good standing under the laws of the state of its organization and (ii) has all
requisite power, authority and legal right to execute, deliver and perform this
Amendment and to perform the Credit Agreement, as amended hereby.
(b) The execution, delivery and performance by the Borrower of this
Amendment and the performance by the Borrower of the Credit Agreement, as
amended hereby (i) have been duly authorized by all necessary action, (ii) do
not and will not violate or create a default under such Borrower's
organizational documents, any applicable law or any contractual restriction
binding on or otherwise affecting the Borrower or any of the Borrower's
properties, and (iii) except as provided in the Loan Documents, do not and will
not result in or require the creation of any Lien, upon or with respect to the
Borrower's property.
(c) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority is required in connection with the
due execution, delivery and performance by the Borrower of this Amendment or the
performance by the Borrower of the Credit Agreement, as amended hereby.
(d) This Amendment and the Credit Agreement, as amended hereby,
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their terms except to the extent the
enforceability thereof may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect affecting
generally the enforcement of creditors' rights and remedies and by general
principles of equity.
(e) The representations and warranties contained in Article VI of
the Credit Agreement are correct on and as of the date hereof as though made on
and as of the date hereof (except to the extent such representations and
warranties expressly relate to an earlier date), and no Default or Event of
Default has occurred and is continuing on and as of the date hereof.
5. Continued Effectiveness of Credit Agreement. The Borrower hereby (a)
confirms and agrees that each Loan Document to which it is a party is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects except that on and after the Amendment Effective Date all
references in any such Loan Document to "the Credit Agreement", the "Agreement",
"hereto", "hereof", "hereunder", "thereto", "thereof", "thereunder" or words of
like import referring to the Credit Agreement shall mean the Credit Agreement as
amended by this Amendment, and (b) confirms and agrees that to the extent that
any such Loan Document purports to assign or pledge to the Collateral Agent for
the ratable benefit of the Lenders, or to grant to the Collateral Agent for the
ratable benefit of the Lenders a security interest in or Lien on, any collateral
as security for the Obligations of the Borrower, or any of its Subsidiaries or
any Guarantor from time to time existing in respect of the Credit Agreement and
the Loan Documents, such pledge, assignment and/or grant of the security
interest or Lien is hereby ratified and confirmed in all respects.
6. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of this Amendment by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Amendment.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
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(d) Borrower will pay on demand all reasonable fees, costs and
expenses of the Agents and the Lenders in connection with the preparation,
execution and delivery of this Amendment or otherwise payable under the Credit
Agreement, including, without limitation, reasonable fees, disbursements and
other charges of counsel to the Agents.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment, to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BORROWER:
PACKAGED ICE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
COLLATERAL AGENT AND LENDER:
ABLECO FINANCE LLC
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President
ADMINISTRATIVE AGENT AND LENDER:
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
LENDER:
XXXXXXXXX L.L.C.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President
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ANNEX I
FORM OF ACKNOWLEDGEMENT AND CONSENT
Reference is hereby made to the Second Amended and Restated Credit
Agreement, dated as of December 27, 2001, as amended by the First Amendment
dated as of January 30, 2002 (the "Credit Agreement"), by and among Packaged
Ice, Inc., a Texas corporation (the "Borrower"), the financial institutions from
time to time party thereto (the "Lenders"), Ableco Finance LLC, as collateral
agent for the Lenders (in such capacity, the "Collateral Agent"), and The CIT
Group/Business Credit, Inc., as successor in interest to Ableco as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") and the Second Amendment thereto, dated as of February 19, 2002 (the
"Second Amendment"). All terms used herein which are defined in the Credit
Agreement, as amended by the Second Amendment, have the same meanings herein as
set forth in the Credit Agreement as so amended.
Each of the undersigned (each, a "Guarantor") is a party to a Guaranty
in which such Guarantor unconditionally guarantees the prompt payment, as and
when due, whether at maturity, by acceleration or otherwise, of all liabilities
(primary, secondary, direct, contingent, sole, joint and/or several) of the
Borrower to the Agents and the Lenders, at any time arising under the Credit
Agreement or any other Loan Document.
Each of the undersigned hereby (a) confirms and agrees that each Loan
Document to which it is a party is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects except that on and
after the Amendment Effective Date (as defined in the Second Amendment) all
references in any such Loan Document to "the Credit Agreement", the "Agreement",
"thereto", "thereof", "thereunder" or words of like import referring to the
Credit Agreement shall mean the Credit Agreement, as amended by the Second
Amendment, and (b) confirms and agrees that to the extent that any such Loan
Document purports to assign or pledge to the Collateral Agent for the ratable
benefit of the Lenders, or to grant to the Collateral Agent for the ratable
benefit of the Lenders a security interest in or Lien on, any collateral as
security for the Obligations of the Borrower or any Guarantor from time to time
existing in respect of the Credit Agreement and the Loan Documents, such pledge,
assignment and/or grant of the security interest or Lien is hereby ratified and
confirmed in all respects.
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IN WITNESS WHEREOF, each Guarantor has caused this Acknowledgement and
Consent to be executed by an officer thereunto duly authorized, as of the
Amendment Effective Date.
GUARANTORS
CASSCO ICE & COLD STORAGE, INC.
By:
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Name:
Title:
PACKAGED ICE IP, INC.
By:
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Name:
Title:
REDDY ICE CORPORATION
By:
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Name:
Title:
SOUTHERN BOTTLED WATER COMPANY, INC.
By:
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Name:
Title:
