Attached files
Exhibit 4.2
REVOLVING NOTE | ||
$40,000,000.00 |
Note No. 63123/00004 Corporate Banking #675 Los Angeles, California December 10, 2010 |
|
On July 1, 2012, (Termination Date) GW Services, Inc., a California corporation
(Borrower), promises to pay to the order of City National Bank, a national banking association
(CNB), at its office in this city, in United States Dollars and in immediately available funds,
the principal sum of Forty Million and 00/100 Dollars ($40,000,000.00)
(Revolving Credit Commitment), or so much thereof as may be advanced and be outstanding, with
interest thereon to be computed on each advance from the date of its disbursement at a rate
computed on a basis of a 360-day year, actual days elapsed, equal to
the Prime Rate of CNB, as
it exists from time to time, plus/minus the Applicable Margin per year. Provided, however, in no
event shall the interest rate be less than four percent (4.00%) per annum. Prime Rate shall mean
the rate most recently announced by CNB at its principal office in Los Angeles, California, as its
Prime Rate. Any change in the Prime Rate shall become effective on the same business day on
which the Prime Rate shall change, without prior notice to Borrower.
As provided herein, the principal of this Note may be borrowed, repaid and reborrowed from
time to time up to and including the Termination Date, provided at the time of any borrowing no
Event of Default (as hereinafter defined) exists, and provided further that the total borrowings
outstanding at any one time shall not exceed the lesser of (i) Forty Million and 00/100
($40,000,000.00) until June 30, 2011 or until the company raises additional capital,
whichever occurs first and Thirty Three Million and 00/100
($33,000,000.00) less any scheduled
line reductions thereafter, Each borrowing and repayment hereunder shall be noted in the books and
records of CNB. The excess of borrowings over repayments shall evidence the principal balance due
hereon from time to time and at any time. Borrowings hereunder shall be presumed to have been made
to or for the benefit of Borrower when made as noted in such books and records.
Following any fiscal quarter ending with Total Funded Debt in excess of two (2) times EBITDA,
additional principal reductions in the amount of Excess Cash Flow shall be made and the amount
available for borrowing under this Note shall be permanently reduced by the same amount until the
end of any subsequent fiscal quarter ending with Total Funded Debt equal to or less than one and
one-half (1 1/2) times EBITDA, measured based on the consolidated statements of Glacier Water,
Inc.
Interest accruing on this Note shall be payable on the first day of each month, commencing
January 1, 2011.
Beginning
July 1, 2011 and continuing on the first day of each calendar quarter thereafter,
the Revolving Credit Commitment shall reduce by One Million Five Hundred Thousand Dollars
($1,500,000.00).
Principal shall be payable in four (4) quarterly consecutive installments of One Million Five
Hundred Thousand & 00/100 Dollars ($1,500,000.00) each commencing July 1, 2011, and continuing
thereafter up to and including April 1, 2012, with a final installment of Twenty Seven Million &
00/100 ($27,000,000.00) plus unpaid interest, due and payable in full on July 1, 2012,
Borrower
shall pay to CNB a late charge of 5% or $10.00, whichever is greater, of any payment not
received by CNB on or before the 10th day after the payment is due.
The occurrence of any of the following with respect to any Borrower or guarantor of this Note
or any general partner of such Borrower or guarantor, shall constitute an Event of Default
hereunder:
1. | Failure to make any payment of principal or interest when due under this Note; |
1
2. | Filing of a petition by or against any of such parties under any provision of the Bankruptcy Code; | |
3. | Appointment of a receiver or an assignee for the benefit of creditors; | |
4. | Commencement of dissolution or liquidation proceedings or the disqualification (under any applicable law or regulation) of any of such parties which is a corporation, partnership, joint venture or any other type of entity ; | |
5. | Death or incapacity of any of such parties which is an individual; | |
6. | Revocation of any guaranty of this Note, or any guaranty of this Note becomes unenforceable as to any future advances under this Note; | |
7. | Any financial statement provided by any of such parties to CNB is false or materially misleading; | |
8. | Any material default in the payment or performance of any obligation, or any default under any provision of any contract or instrument pursuant to which any of such parties has incurred any obligation for borrowed money, any purchase obligation or any other liability of any kind to any person or entity, including CNB; | |
9. | Any sale or transfer of all or a substantial part of the assets of any of such parties other than in the ordinary course of business; | |
10. | Any violation, breach or default under this Note, any letter agreement, guaranty, security agreement, deed of trust, subordination agreement or any other contract or instrument executed in connection with this Note or securing this Note; | |
11. | Failure of Borrower to furnish CNB, within the times specified, the following statements: |
11.1 | Within one hundred twenty (120) days after the close of each fiscal year, a copy of the annual consolidated audit report for such year for Glacier Water, inc., including therein a balance sheet, income statement, reconciliation of net worth and statement of cash flows, with notes thereto, together with a compliance certificate to be audited by a certified public accountant acceptable to CNB, and prepared in accordance with generally accepted accounting principles consistently applied and accompanied by Borrowers certification as to whether any event has occurred which constitutes an Event of Default, and if so, stating the facts with respect thereto; | ||
11.2 | Within forty-five (45) days after the end of the first three quarterly accounting periods of each fiscal year, a financial statement consisting of not less than a balance sheet, income statement, reconciliation of net worth and statement of cash flows, with notes thereto, together with a compliance certificate to be prepared in accordance with generally accepted accounting principles consistently applied, which financial statement may be internally prepared, certified by Borrower to be true and correct; and | ||
11.3 | Such additional information, reports and/or statements as CNB may, from time to time, reasonably request; |
12. | Funded Debt exceeds the lesser of (i) $40,000,000.00 through June 30, 2011, $33,000,000,00 less scheduled reductions thereafter; or (ii) two and a half times EBITDA through June 30, 2011 and two times EBITDA thereafter, to be calculated on a rolling four quarter; | |
13. | Failure of Borrower to maintain a ratio of EBITDA to Debt Service plus interest of not less than 1.25 to 1 at all times; |
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14. | Capital Expenditures during any twelve (12) month period ending with the end of a fiscal quarter in excess of $23,000,000.00 to September 30, 2011 and $18,000,000.00 thereafter, excluding capital expenditures financed by additions to capital; | |
15. | Payment of dividends during any fiscal year in excess of EBITDA during such fiscal year, less (i) capital expenditures for maintenance (estimated for the purposes of this section to be $5,000,000.00), (ii) scheduled principal payments on borrowed money, (iii) taxes paid, and (iv) interest expense; | |
16. | Borrower shall pay to CNB an annual loan fee according to the schedule below: |
Amount | Due and payable | |||
$ | 41,250.00 | January 1, 2011 |
||
$ | 71,250.00 | July 1,
2011 |
||
$ | 33,750.00 | October 1, 2011 |
||
$ | 31,750.00 | January 1, 2012 |
17. | Glacier Water Trust 1 (the Trust) makes any prepayments on the 9.0625% Cumulative Trust Preferred Securities (Trust Securities), without CNBs prior written consent; | |
18. | Glacier Water Services Inc. (Glacier) makes any prepayments on the Junior Subordinated Indenture dated January 27, 1998; | |
19. | Glacier commits an Event of Default, including but not limited to an Event of Default relating to those provisions relating to subordination, with respect to the Junior Subordinated Indenture; | |
20. | Glacier commits an Event of Default, including but not limited to an Event of Default relating to those provisions relating to subordination, with respect to Glaciers Guaranty of the Trust obligations owed to the holders of securities issued to the Trust; | |
21. | Borrower makes any payments or transfers any assets to Glacier or Glacier Subsidiary, except apart from transfers necessary to make payments due on the Junior Subordinate Indenture and outside the ordinary BMC course of business, provided that Borrower is not in default under the Note, without CNBs prior written consent; or | |
22. | Borrower, Glacier, or any other subsidiary of Glacier creates, incurs, assumes or permits to exist any Debt except (a) Debt to CNB, and (b) trade Debt in the ordinary course of Borrowers business. | |
For purposes of this Note, the following terms have the following meanings: |
Applicable
Margin shall be based upon the amount of Total Funded Debt divided by
EBITDA, each calculated as of the last day of each fiscal quarter and applicable to the
next fiscal quarter as set forth below:
Total Funded Debt | Applicable Margin | |
EBITDA |
||
Less than 1.5
|
Plus One Quarter (+.25%) | |
Equal to or greater than 1.5 But less than 1.75 |
Plus Three-Quarters (+.75%) | |
Equal to or greater than 1.75
|
Plus One (+1.00%) |
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Initial advances shall be based upon Applicable Margin of Prime plus Three Quarters (0.75%).
Debt Service Shall mean (a) the aggregate amount of Current Maturity of Long Term Debt,
excluding borrowings under this Note, plus (b) all interest incurred on borrowed money determined
by reference to the most recently ended fiscal quarter and the immediately preceding three fiscal
quarters.
Current Maturity of Long Term Debt means that portion of Borrowers consolidated long term
liabilities, determined in accordance with generally accepted accounting principles, which shall,
by the terms thereof, become due and payable within one (i) year following the date of the balance
sheet upon which such calculations are based.
Funded Debt means the total borrowings outstanding.
EBITDA means earnings before interest, taxes, depreciation and amortization and will
be determined on a consolidated basis for Borrower and the Subsidiaries, in accordance with
generally accepted accounting principles and means the sum of (a) net income after eliminating
extraordinary gains and losses, plus (b) interest expense, plus (c) provisions for income taxes,
plus (d) depreciation and amortization. The calculation of EBITDA shall be determined by reference
to the most recently ended fiscal quarter and the immediately preceding three fiscal quarters.
Subsidiary Shall mean any corporation, the majority of whose voting shares are
at any time owned, directly or indirectly by Borrower and/or by one or more Subsidiaries.
Upon the occurrence of any Event of Default, CNB, at its option, may declare all sums of
principal and interest outstanding hereunder to be immediately due and payable without
presentment, demand, protest or notice of dishonor all of which are expressly waived by Borrower,
and CNB shall have no obligation to make any further advances hereunder. Borrower agrees to pay
all costs and expenses, including reasonable attorneys fees (which counsel may be CNB employees),
expended or incurred by CNB (or allocable to CNBs in-house counsel) in connection with the
enforcement of this Note or the collection of any sums due hereunder and irrespective of whether
suit is filed. Any principal or interest not paid when due hereunder shall thereafter bear
additional interest from its due date at a rate of five percent (5.0%) per year higher than the
interest rate as determined and computed above, and continuing thereafter until paid.
In addition to pursuing all rights and remedies that would exist in an Event of Default, CNB
may seek additional lenders to participate in this transaction, should Borrower fail to cause the
commitment to be reduced to $33,000,000.00 as of June 30, 2011.
Should more than one person or entity execute this Note as Borrower, the liability and
obligations of each Borrower shall be joint and several.
This Note and all matters relating thereto, shall be governed by the laws of the State of
California.
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Borrower represents and warrants to CNB that (a) Borrowers most recent financial statements
that have been delivered to CNB are true, complete and correct and fairly present the financial
condition of Borrower as of the accounting period referenced on the statements, and there has been
no material adverse change in the financial condition of Borrower since the date of such financial
statements, and (b) Borrowers most recent federal income tax return and all schedules attached to
such return (Federal Tax Return) that have been delivered to CNB are a true and correct copy of
such Federal Tax Return filed with the internal Revenue Service for the tax period ending on the
date indicated in such Federal Tax Return.
Borrower | GW Services, Inc., a California corporation |
|||
By: | /s/ Brian H. McInerney | |||
Brian H. McInerney, President/CEO | ||||
5
DISBURSEMENT INSTRUCTIONS | ||
Branch: Corporate Banking #675
Date: December 10, 2010
Date: December 10, 2010
City National Bank is authorized to disburse the proceeds of that certain original note dated
December 10, 2010, in the amount of $40,000,000.00, executed by the undersigned Borrower as
follows:
Restructure/Renewal | In the Name of | |||||||
63123/00004 |
GW Services, Inc. | $ | 33,000,000.00 | |||||
Undisbursed: |
$ | 7,000,000.00 | ||||||
TOTAL: | $ | 40,000,000.00 |
LOAN PROCEEDS, All proceeds are to be credited to Account Number 101-895637 at City National Bank.
Disburse as Requested by: (identify persons authorized to make requests)
Brian H. McInerney or Steve Stringer upon written or verbal request.
GW Services, Inc., a California corporation |
||||
By: | /s/ Brian H. McInerney | |||
Brian H. McInerney, President/CEO | ||||
LOAN FEES AND CHARGES | ||
Borrower: GW Services, Inc.
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Date: 12/10/10 | |
Branch Name and No.: Corporate Banking #675 |
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Customer No.: 63123
|
Note No.: 00004 |
In connection with the above referenced loan, fees and charges, as estimated, are as follows:
Loan Fee |
$17,500.00 | |
Total Estimated Fees |
$17,500.00 |
Actual fees may be higher or lower than estimated fees. Any excess funds will be deposited
to Borrowers Checking Account or reimbursed by Cashiers Check. If fees collected are
insufficient to cover out of pocket costs, the Borrower will be billed directly for the balance
unless authorization to debit the account is received.
þ By checking this box, Borrower hereby authorizes City National Bank to charge the aforementioned
fees and charges to depository account number 101895637.
GW Services, Inc., a California corporation |
||||
By: | /s/ Brian H. McInerney | |||
Brian H. McInerney, President/CEO | ||||
CORPORATE
RESOLUTION TO BORROW / GRANT COLLATERAL
Principal | Loan Date | Maturity | Loan No | Call / Coll | Account | Officer | Initials | |||||||
$40,000,000,00 | 12-10-2010 | 07-01-2012 | 00004 | 63123 | GP |
References in the boxes above are for Lenders use only and do not limit the applicability of this document to any particular loan or item.
Any item above containing *** has been omitted due to text length limitations.
Any item above containing *** has been omitted due to text length limitations.
Lender: | City National Bank, a national banking association | |||||
Corporation:
|
GW SERVICES, INC., A CALIFORNIA | Entertainment New York Office | ||||
CORPORATION | 400 Park Avenue, Suite 2010 | |||||
1385 PARK CENTER DRIVE | New York, NY 10022 | |||||
VISTA, CA 92081-8338 |
I, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE
CORPORATIONS EXISTENCE. The complete and correct name of the Corporation is GW SERVICES,
INC., A CALIFORNIA CORPORATION (Corporation). The Corporation is a corporation for profit
which is, and at all times shall be, duly organized, validly existing, and in good standing
under and by virtue of the laws of the State of California. The Corporation is duly authorized
to transact business in the State of New York and all other states in which the Corporation is
doing business, having obtained all necessary filings, governmental licenses and approvals for
each state in which the Corporation is doing business. Specifically, the Corporation is, and
at all times shall be, duly qualified as a foreign corporation in all states in which the
failure to so qualify would have a material adverse effect on its business or financial
condition. The Corporation has the full power and authority to own its properties and to
transact the business in which it is presently engaged or presently proposes to engage. The
Corporation maintains an office at 1385 PARK CENTER DRIVE, VISTA, CA 92081-8338. Unless the
Corporation has designated otherwise in writing, the principal office is the office at which
the Corporation keeps its books and records. The Corporation will notify Lender prior to any
change in the location of the Corporations state of organization or any change in the
Corporations name. The Corporation shall do all things necessary to preserve and to keep in
full force and effect its existence, rights and privileges, and shall comply with all
regulations, rules, ordinances, statutes, orders and decrees of any governmental or
quasi-governmental authority or court applicable to the Corporation and the Corporations
business activities.
RESOLUTIONS
ADOPTED. At a meeting of the Directors of the Corporation, or if the Corporation
is a close corporation having no Board of Directors then at a meeting of the Corporations
shareholders, duly, called and held on December 10, 2010, at which a quorum was present and
voting, or by other duly authorized action in lieu of a meeting, the resolutions set forth in
this Resolution were adopted.
OFFICER. The following named person is an officer of GW SERVICES, INC., A CALIFORNIA CORPORATION:
NAMES | TITLES | AUTHORIZED | ACTUAL SIGNATURES | ||||
BRIAN H. McINERNEY
|
President/CEO | Y | X | /s/ Brian H. McInerney |
ACTIONS
AUTHORIZED. The authorized person listed above may enter into any agreements of any
nature with Lender, and those agreements will bind the Corporation. Specifically, but without
limitation, the authorized person is authorized, empowered, and directed to do the following
for and on behalf of the Corporation:
Borrow
Money. To borrow, as a cosigner or otherwise, from time to time from Lender, on such
terms as may be agreed upon between the Corporation and Lender, such sum or sums of money
as in his or her judgment should be borrowed, without limitation.
Execute
Notes. To execute and deliver to Lender the promissory note or notes, or other
evidence of the Corporations credit accommodations, on Lenders forms, at such rates of
interest and on such terms as may be agreed upon, evidencing the sums of money so borrowed
or any of the Corporations indebtedness to Lender, and also to execute and deliver to
Lender one or more renewals, extensions, modifications, refinancings, consolidations, or
substitutions for one or more of the notes, any portion of the notes, or any other evidence
of credit accommodations.
Grant
Security. To mortgage, pledge, transfer, endorse, hypothecate, or otherwise encumber
and deliver to Lender any property now or hereafter belonging to the Corporation or in
which the Corporation now or hereafter may have an interest, including without limitation
all of the Corporations real property and all of the Corporations personal property
(tangible or intangible), as security for the payment of any loans or credit accommodations
so obtained, any promissory notes so executed (including any amendments to or
modifications, renewals, and extensions of such promissory notes), or any other or further
indebtedness of the Corporation to Lender at any time owing, however the same may be
evidenced. Such property may be mortgaged, pledged, transferred, endorsed, hypothecated or
encumbered at the time such loans are obtained or such indebtedness is incurred, or at any
other time or times, and may be either in addition to or in lieu of any property
theretofore mortgaged, pledged, transferred, endorsed, hypothecated or encumbered.
Execute
Security Documents. To execute and deliver to Lender the forms of mortgage, deed of
trust, pledge agreement, hypothecation agreement, and other security agreements and
financing statements which Lender may require and which shall evidence the terms and
conditions under and pursuant to which such liens and encumbrances, or any of
them, are given; and also to execute and deliver to Lender any other written instruments,
any chattel paper, or any other collateral, of any kind or nature, which Lender may deem
necessary or proper in connection with or pertaining to the giving of the liens and
encumbrances.
Negotiate
Items. To draw, endorse, and discount with Lender all drafts, trade acceptances,
promissory notes, or other evidences of indebtedness payable to or belonging to the
Corporation or in which the Corporation may have an interest, and either to receive cash
for the same or to cause such proceeds to be credited to the Corporations account with
Lender, or to cause such other disposition of the proceeds derived therefrom as he or she
may deem advisable.
Further
Acts. In the case of lines of credit, to designate additional or alternate
individuals as being authorized to request advances under such lines, and in all cases, to
do and perform such other acts and things, to pay any and all fees and costs, and to
execute and deliver such other documents and agreements as the officer may in his or her
discretion deem reasonably necessary or proper in order to carry into effect the provisions
of this Resolution. The following person or persons are authorized to request advances and
authorize payments under the line of credit until Lender receives from the Corporation, at
Lenders address shown above, written notice of revocation of such authority: BRIAN H.
McINERNEY and STEVE STRINGER.
ASSUMED
BUSINESS NAMES. The Corporation has filed or recorded all documents or filings
required by law relating to all assumed business names used by the Corporation. Excluding the
name of the Corporation, the following is a complete list of all assumed business names under
which the Corporation does business: None.
NOTICES
TO LENDER. The Corporation will promptly notify Lender in writing at Lenders address
shown above (or such other addresses as Lender may designate from time to time) prior to any
(A) change in the Corporations name; (B) change in the Corporations assumed business
name(s); (C) change in the management of the Corporation; (D) change in the authorized
signer(s); (E) change in the Corporations
CORPORATE RESOLUTION TO BORROW / GRANT COLLATERAL
(Continued)
(Continued)
Loan No: 00004 | Page 2 | |
principal
office address; (F) change in the Corporations state of
organization; (G)
conversion of the Corporation to a new or different type of business
entity; or (H) change in any
other aspect of the Corporation that directly or indirectly relates to any agreements between the
Corporation and Lender. No change in the Corporations name or state of organization will take
effect until after Lender has received notice.
CERTIFICATION CONCERNING OFFICERS AND RESOLUTIONS. The officer named above is duly elected,
appointed, or employed by or for the Corporation, as the case may be, and occupies the position
set opposite his or her respective name. This Resolution now stands of record on the books of the
Corporation, is in full force and effect, and has not been modified or revoked in any manner
whatsoever.
NO CORPORATE SEAL. The Corporation has no corporate seal, and therefore, no seal is affixed to this
Resolution.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and performed prior
to the passage of this Resolution are hereby ratified and approved. This Resolution shall be
continuing, shall remain in full force and effect and Lender may rely on it until written notice
of its revocation shall have been delivered to and received by Lender at Lenders address shown
above (or such addresses as Lender may designate from time to time). Any such notice shall not
affect any of the Corporations agreements or commitments in
effect at the time notice is given.
IN TESTIMONY WHEREOF, I have hereunto set my hand and attest that the signature set opposite the
name listed above is his or her genuine signature.
I have read all the provisions of this Resolution, and I personally and on behalf of the
Corporation certify that all statements and representations made in this Resolution are true and
correct. This Corporate Resolution to Borrow / Grant Collateral is dated December 10, 2010.
CERTIFIED TO AND ATTESTED BY: |
||||
X | /s/ Steve Stringer | |||
STEVE STRINGER, SECRETARY |
NOTE: If
the officer signing this Resolution is designated by the foregoing
document at one of
the officers authorized to act on the Corporations behalf, it is advisable to have this
Resolution signed by at least one non-authorized officer of the Corporation.
[Illegible]
CORPORATE RESOLUTION TO GRANT COLLATERAL / GUARANTEE
Principal | Loan Date | Maturity | Loan No | Call/Coll | Account | Officer | Initials | |||||||
$40,000,000,00 | 12-10-2010 | 07-01-2012 | 00004 | 63123 | GP |
References in the boxes above are for Lenders use only and do not limit the applicability of this document to any particular loan or item.
Any item above containing *** has been omitted due to text length limitations.
Any item above containing *** has been omitted due to text length limitations.
Borrower:
|
GW SERVICES, INC., A CALIFORNIA CORPORATION 1385 PARK CENTER DRIVE VISTA, CA 92081-8338 |
Lender: | City National Bank, a national banking association Entertainment New York Office 400 Park Avenue, Suite 2010 New York, NY 10022 |
|||
Corporation:
|
GLACIER WATER SERVICES, INC., A DELAWARE CORPORATION 1385 PARK CENTER DRIVE VISTA, CA 92081-8338 |
I, THE
UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE
CORPORATIONS EXISTENCE. The complete and correct name of the Corporation is GLACIER
WATER SERVICES, INC., A DELAWARE CORPORATION (Corporation). The
Corporation is a corporation for profit which is and at all times shall be, duly
organized, validly existing, and in good standing under and by virtue
of the laws of the
State of Delaware. The Corporation is duly authorized to transact business in the State of
New York and all other states in which the Corporation is doing business, having obtained
all necessary filings, governmental licenses and approvals for each state in which the
Corporation is doing business. Specifically, the Corporation is, and at all times shall
be, duly qualified as a foreign corporation in all states in which the failure to so
qualify would have a material adverse effect on its business or financial condition. The
Corporation has the full power and authority to own its properties and to transact the
business in which it is presently engaged or presently proposes to engage. The Corporation
maintains an office at 1385 PARK CENTER DRIVE, VISTA, CA 92081-8338. Unless the
Corporation has designated otherwise in writing, the principal office is the office at
which the Corporation keeps its books and records. The Corporation will notify Lender
prior to any change in the location of the Corporations state of organization or any
change in the Corporations name. The Corporation shall do all things necessary to
preserve and to keep in full force and effect its existence, rights and privileges, and
shall comply with all regulations, rules, ordinances, statutes, orders and decrees of any
governmental or quasi-governmental authority or court applicable to the Corporation and
the Corporations business activities.
RESOLUTIONS
ADOPTED. At a meeting of the Directors of the Corporation, or if the
Corporation is a close corporation having no Board of Directors then at a meeting of the
Corporations shareholders, duly called and held on
December 10, 2010, at which a quorum
was present and voting, or by other duly authorized action in lieu of a meeting, the
resolutions set forth in this Resolution were adopted.
OFFICER. The following named person is an officer of GLACIER WATER SERVICES, INC., A DELAWARE
CORPORATION:
NAMES | TITLES | AUTHORIZED | ACTUAL SIGNATURES | ||||
BRIAN H. MCINERNEY
|
CEO | Y | X | /s/ Brian H. McInerney | (Seal) | ||
ACTIONS
AUTHORIZED. The authorized person listed above may enter into any agreements of
any nature with Lender, and those agreements will bind the Corporation. Specifically, but
without limitation, the authorized person is authorized, empowered, and directed to do the
following for and on behalf of the Corporation.
Guaranty. To guarantee or act as surety for loans or other financial accommodations to
Borrower from Lender on such guarantee or surety terms as may be agreed upon between
the officer of the Corporation and Lender and in such sum or sums of money as in his
or her judgment should be guaranteed or assured, (the
Guaranty).
Grant
Security. To mortgage, pledge, transfer, endorse, hypothecate, or otherwise
encumber and deliver to Lender any property now or hereafter belonging to the
Corporation or in which the Corporation now or hereafter may have an interest,
including without limitation all of the Corporations real
property and all of the
Corporations personal property (tangible or intangible), as security for the
Guaranty, and as a security for the payment of any loans, any promissory notes, or any
other or further indebtedness of GW SERVICES, INC., A CALIFORNIA CORPORATION to Lender
at any time owing, however the same may be evidenced. Such property may be mortgaged,
pledged, transferred, endorsed, hypothecated or encumbered at the time such loans are
obtained or such indebtedness is incurred, or at any other time or times, and may be
either in addition to or in lieu of any property theretofore mortgaged, pledged,
transferred, endorsed, hypothecated or encumbered. The provisions of this Resolution
authorizing or relating to the pledge, mortgage, transfer, endorsement, hypothecation,
granting of a security interest in, or in any way encumbering, the assets of the
Corporation shall include, without limitation, doing so in order to lend collateral
security for the indebtedness, now or hereafter existing, and of any nature
whatsoever, of GW SERVICES, INC., A CALIFORNIA CORPORATION to Lender. The Corporation
has considered the value to itself of
lending collateral in support of such indebtedness, and the Corporation represents to
Lender that the Corporation is benefited by doing so.
Execute
Security Documents. To execute and deliver to Lender the forms of mortgage,
deed of trust, pledge agreement, hypothecation agreement, and other security
agreements and financing statements which Lender may require and which shall evidence
the terms and conditions under and pursuant to which such liens and encumbrances, or
any of them, are given; and also to execute and deliver to Lender any other written
instruments, any chattel paper, or any other collateral, of any kind or nature, which
Lender may deem necessary or proper in connection with or pertaining to the giving of
the liens and encumbrances.
Further Acts. To do and perform such other acts and things and to execute and deliver
such other documents and agreements as the officer may in his or her discretion deem
reasonably necessary or proper in order to carry into effect the provisions of this
Resolution.
ASSUMED
BUSINESS NAMES. The Corporation has filed or recorded all documents or
filings required by law relating to all assumed business names used by the Corporation.
Excluding the name of the Corporation, the following is a complete list of all assumed
business names under which the Corporation does business: None.
NOTICES
TO LENDER. The Corporation will promptly notify Lender in writing at Lenders
address shown above (or such other addresses as Lender may designate from time to time)
prior to any (A) change in the Corporations name; (B) change in the Corporations assumed
business name(s); (C) change in the management of the Corporation; (D) change in the
authorized signer(s); (E) change in the Corporations principal office address; (F)
change in the Corporations state of organization; (G) conversion of the Corporation to a
new or different type of business entity; or (H) change in any other aspect of the
Corporation that directly or indirectly relates to any agreements between the Corporation
and Lender, No change in the Corporations name or state of organization will take effect
until after Lender has received notice.
CERTIFICATION
CONCERNING OFFICERS AND RESOLUTIONS. The officer named above is duly elected,
appointed, or employed by or for the
CORPORATE RESOLUTION TO GRANT COLLATERAL / GUARANTEE
(Continued)
(Continued)
Loan No: 00004 | Page 2 | |
Corporation, as the case may be, and occupies the position set opposite his or her respective
name. This Resolution now stands of record on the books of the Corporation, is in full force
and effect, and has not been modified or revoked in any manner whatsoever.
NO CORPORATE SEAL. The Corporation has no corporate seal, and therefore, no seal is affixed to this
Resolution.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and performed
prior to the passage of this Resolution are hereby ratified, and approved. This Resolution
shall be continuing, shall remain in full force and affect and Lender may rely on it until
written . notice of its revocation shall have been delivered to and received by Lender at
Lenders address shown above (or such addresses as Lender may designate from time to time). Any
such notice shall not affect any of the Corporations agreements or commitments in effect at
the time notice is given,
IN TESTIMONY WHEREOF, I have hereunto set my hand and attest that the signature set opposite
the name listed above is his or her genuine signature.
I have read all the provisions of this Resolution, and I personally and on behalf of the
Corporation certify that all statements and representations made in this Resolution are true
and correct. This Corporate Resolution to Grant Collateral / Guarantee is dated December 10,
2010.
THIS RESOLUTION IS DELIVERED UNDER SEAL AND IT IS INTENDED THAT THIS RESOLUTION IS AND SHALL
CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
CERTIFIED TO AND ATTESTED BY: |
||||
X | /s/ Steve Stringer | (Seal) | ||
STEVE STRINGER, SECRETARY | ||||
NOTE: If the officer signing this Resolution is designated by the foregoing document as
one of the officers authorized to net on the Corporations behalf, it is advisable so have this
Resolution signed by at least one non-authorized officer of five Corporation.
[Illegible]
COMMERCIAL
GUARANTY
Principal | Loan Date | Maturity | Loan No | Call/Coll | Account | Officer | Initials | |||||||
GP |
References in the boxes above are for Lenders use only and do not limit the applicability of this document to any particular loan or item.
Any item above containing *** has been omitted due to text length limitations.
Any item above containing *** has been omitted due to text length limitations.
Borrower:
|
GW SERVICES, INC., A CALIFORNIA CORPORATION 1385 PARK CENTER DRIVE VISTA, CA 92081-8338 |
Lender: | City National Bank, a national banking association Entertainment New York Office 400 Park Avenue, Suite 2010 New York, NY 10022 |
|||
Guarantor:
|
GLACIER WATER SERVICES, INC., A DELAWARE CORPORATION 1385 PARK CENTER DRIVE VISTA, CA 92081-8338 |
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration,
Guarantor absolutely and unconditionally guarantees full and punctual payment and
satisfaction of Guarantors Share of the Indebtedness of Borrower to Lender, and the
performance and discharge of all Borrowers obligations under the Note and the Related
Documents. This is a guaranty of payment and performance and not of collection, so Lender
can enforce this Guaranty against Guarantor even when Lender has not exhausted Lenders
remedies against anyone else obligated to pay the Indebtedness or against any collateral
securing the Indebtedness, this Guaranty or any other guaranty of the Indebtedness.
Guarantor will make any payments to Lender or its order, on demand, in legal tender of the
United States of America, in same-day funds, without set-off or deduction or counterclaim,
and will otherwise perform Borrowers obligations under the Note and Related Documents.
Under this Guaranty, Guarantors obligations are continuing.
INDEBTEDNESS. The word Indebtedness as used in this Guaranty means all of the principal
amount outstanding from time to time and at any one or more times, accrued unpaid interest
thereon and all collection costs and legal expenses related thereto permitted by law,
reasonable attorneys fees, arising from any and all debts, liabilities and obligations of
every nature or form, now existing or hereafter arising or acquired, that Borrower
individually or collectively or interchangeably with others, owes or will owe Lender,
indebtedness includes, without limitation, loans, advances, debts, overdraft
indebtedness, credit card indebtedness, lease obligations, liabilities and obligations
under any interest rate protection agreements or foreign currency exchange agreements or
commodity price protection agreements, other obligations, and liabilities of Borrower, and
any present or future judgments against Borrower, future advances, loans or transactions
that renew, extend, modify, refinance, consolidate or substitute these debts, liabilities
and obligations whether; voluntarily or involuntarily incurred; due or to become due by
their terms or acceleration; absolute or contingent; liquidated or unliquidated; determined
or undetermined; direct or indirect; primary or secondary in nature or arising from a
guaranty or surety; secured or unsecured; joint or several or joint and several; evidenced
by a negotiable or non-negotiable instrument or writing; originated by Lender or another or
others; barred or unenforceable against Borrower for any reason whatsoever; for any
transactions that may be voidable for any reason (such as infancy, insanity, ultra vires or
otherwise); and originated then reduced or extinguished and then afterwards increased or
reinstated.
If Lender presently holds one or more guaranties, or hereafter receives additional
guaranties from Guarantor, Lenders rights under all guaranties shall be cumulative. This
Guaranty shall not (unless specifically provided below to the contrary) affect or
invalidate any such other guaranties. Guarantors liability will be Guarantors aggregate
liability under the terms of this Guaranty and any such other unterminated guaranties.
GUARANTORS
SHARE OF THE INDEBTEDNESS. The words Guarantors Share of the Indebtedness as
used in this Guaranty mean an amount not to exceed Forty Million & 00/100 Dollars
($40,000,000.00) of the principal amount, plus interest thereon to the extent
not prohibited by law, and all collection costs, expenses and reasonable attorneys fees
whether or not there is a lawsuit, and if there is a lawsuit, any fees and costs for trial
and appeals.
Guarantors Share of the Indebtedness will only be reduced by sums actually paid by
Guarantor under this Guaranty, but will not be reduced by sums from any other source
including, but not limited to, sums realized from any collateral securing the Indebtedness
or this Guaranty, or payments by anyone other than Guarantor, or
reductions by operation of
law, judicial order or equitable principles. Lender has the sole and absolute discretion to
determine how sums shall be applied among guaranties of the Indebtedness.
The above limitation on liability is not a restriction on the amount of the Note of Borrower to
Lender either in the aggregate or at any one time.
CONTINUING
GUARANTY. THIS IS A CONTINUING GUARANTY UNDER WHICH GUARANTOR AGREES TO
GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE GUARANTORS
SHARE OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR HEREAFTER ARISING OR
ACQUIRED, ON A CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE INDEBTEDNESS WILL
NOT DISCHARGE OR DIMINISH GUARANTORS
OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING INDEBTEDNESS
EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO
TIME.
DURATION
OF GUARANTY. This Guaranty will take effect when received by Lender without the
necessity of any acceptance by Lender, or any notice to Guarantor or to Borrower, and will
continue in full force until all the Indebtedness incurred or contracted before receipt by
Lender of any notice of revocation shall have been fully and finally paid and satisfied and
all of Guarantors other obligations under this Guaranty shall have been performed in full.
If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing.
Guarantors written notice of revocation must be mailed to Lender, by certified mail, at
Lenders address listed above or such other place as Lender may designate in writing.
Written revocation of this Guaranty will apply only to new Indebtedness created after
actual receipt by Lender of Guarantors written revocation. For this purpose and without
limitation, the term new Indebtedness does not include the Indebtedness which at the time
of notice of revocation is contingent, unliquidated, undetermined or not due and which
later becomes absolute, liquidated, determined or due. For this purpose and without
limitation, new Indebtedness does not include all or part of the Indebtedness that is:
incurred by Borrower prior to revocation; incurred under a commitment that became binding
before revocation; any renewals, extensions, substitutions, and modifications of the
Indebtedness. This Guaranty shall bind Guarantors estate as to the Indebtedness created
both before and after Guarantors death or incapacity, regardless of Lenders actual notice
of Guarantors death. Subject to the foregoing, Guarantors executor or administrator or
other legal representative may terminate this Guaranty in the same manner in which
Guarantor might have terminated it and with the same effect. Release of any other guarantor
or termination of any other guaranty of the Indebtedness shall not affect the liability of
Guarantor under this Guaranty. A revocation Lender receives from any one or more Guarantors
shall not affect the liability of any remaining Guarantors under this
COMMERCIAL GUARANTY
(Continued)
(Continued)
Loan No: 00004 | Page 2 |
Guaranty.
It is anticipated that fluctuations may occur in the aggregate amount of the
Indebtedness covered by this Guaranty, and Guarantor specifically acknowledges and agrees
that reductions in the amount of the Indebtedness, even to zero
dollars ($0.00), shall not
constitute a termination of this Guaranty. This Guaranty is binding upon Guarantor and
Guarantors heirs, successors and assigns so long as any of the Guarantors Share of the
Indebtedness remains unpaid and even though the Guarantors Share of the Indebtedness may
from time to time be zero dollars ($0.00).
GUARANTORS
AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any
revocation hereof, without notice or demand and without lessening Guarantors liability under this
Guaranty, from time to time: (A) prior to revocation as set forth above, to make one or more
additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower,
or otherwise to extend additional credit to Borrower; (B) to alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other terms of the
indebtedness or any part of the Indebtedness, including increases and decreases of the rate of
interest on the Indebtedness; extensions may be repeated and may be for longer than the original
loan term; (C) to take and hold security for the payment of this Guaranty or the Indebtedness, and
exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such
security, with or without the substitution of new collateral; (D) to release, substitute, agree
not to sue, or deal with any one or more of Borrowers sureties, endorsers, or other guarantors on
any terms or in any manner Lender may choose; (E) to determine how, when and what application of
payments and credits shall be made on the Indebtedness; (F) to apply such security and direct the
order or manner of sale thereof, including without limitation, any nonjudicial sale permitted by
the terms of the controlling security agreement or deed of trust, as Lender in its discretion may
determine; (G) to sell, transfer, assign or grant participations in all or any part of the
indebtedness; and (H) to assign or transfer this Guaranty in whole or in part.
GUARANTORS
REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A)
no representations or agreements of any kind have been made to Guarantor which would limit or
qualify in any way the terms of this Guaranty; (B) this Guaranty is executed at Borrowers request
and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into
this Guaranty; (D) the provisions of this Guaranty do not conflict with or result in a default
under any agreement or other instrument binding upon Guarantor and do not result in a violation of
any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has not and will
not, without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate,
transfer, or otherwise dispose of all or substantially all of Guarantors assets, or any interest
therein; (F) upon Lenders request, Guarantor will provide to Lender financial and credit
information in form acceptable to Lender, and all such financial information which currently has
been, and all future financial information which will be provided to Lender is and will be true
and correct in all material respects and fairly present Guarantors financial condition as of the
dates the financial information is provided; (G) no material adverse change has occurred in
Guarantors financial condition since the date of the most recent financial statements provided to
Lender and no event has occurred which may materially adversely affect Guarantors financial
condition; (H) no litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Guarantor is pending or threatened; (I) Lender has made
no representation to Guarantor as to the creditworthiness of Borrower; and (J) Guarantor has
established adequate means of obtaining from Borrower on a continuing basis information regarding
Borrowers financial condition. Guarantor agrees to keep adequately informed from such means of
any facts, events, or circumstances which might in any way affect Guarantors risks under this
Guaranty, and Guarantor further agrees that, absent a request for information, Lender shall have
no obligation to disclose to Guarantor any information or documents acquired by Lender in the
course of its relationship with Borrower.
GUARANTORS
WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require
Lender (A) to continue lending money or to extend other credit to Borrower; (B) to make any
presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the
Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction
on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with the
Indebtedness or in connection with the creation of new or additional
loans or obligations; (C) to
resort for payment or to proceed directly or at once against any person, including Borrower or any
other guarantor; (D) to proceed directly against or exhaust any collateral held by Lender from
Borrower, any other guarantor, or any other person; (E) to pursue any other remedy within Lenders
power; or (F) to commit any act or omission of any kind, or at any time, with respect to any
matter whatsoever.
Guarantor also waives any and all rights or defenses based on suretyship or impairment of
collateral including, but not limited to, any rights or defenses arising by reason of (A) any one
action or anti-deficiency law or any other law which may prevent Lender from bringing any
action, including a claim for deficiency, against Guarantor, before or after Lenders commencement
or completion of any foreclosure action, either judicially or by exercise of a power of sale; (B)
any election of remedies by Lender which destroys or otherwise adversely affects Guarantors
subrogation rights or Guarantors rights to proceed against Borrower for reimbursement, including
without limitation, any loss of rights Guarantor may suffer by reason of any law limiting,
qualifying, or discharging the Indebtedness; (C) any disability or other defense of Borrower, of
any other guarantor, or of any other person, or by reason of the cessation of Borrowers liability
from any cause whatsoever, other than payment in full in legal tender, of the Indebtedness; (D)
any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any
collateral for the Indebtedness; (E) any statute of limitations, if at any time any action or suit
brought by Lender against Guarantor is commenced, there is outstanding Indebtedness which is not
barred by any applicable statute of limitations; or (F) any defenses given to guarantors at law or
in equity other than actual payment and performance of the
Indebtedness. If payment is made by
Borrower, whether voluntarily or otherwise, or by any third party, on the Indebtedness and
thereafter Lender is forced to remit the amount of that payment to Borrowers trustee in
bankruptcy or to any similar person under any federal or state bankruptcy law or law for the
relief of debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement
of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any deductions to the
amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand,
recoupment or similar right whether such claim, demand or right may be asserted by the Borrower,
the Guarantor, or both.
GUARANTORS
UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the
waivers set forth above is made with Guarantors full knowledge of its significance and
consequences and that, under the circumstances, the waivers are reasonable and not contrary to
public policy or law. If any such waiver is determined to be contrary to any applicable law or
public policy, such waiver shall be effective only to the extent permitted by law or public
policy.
SUBORDINATION
OF BORROWERS DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, whether
now existing or hereafter created, shall be superior to any claim that Guarantor may now have or
hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever,
to any claim that Lender may now or hereafter have against Borrower. In the event of insolvency
and consequent liquidation of the assets of Borrower, through bankruptcy, by an assignment for the
benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to
the payment of the claims of both Lender and Guarantor shall be paid to Lender and shall be first
applied by Lender to the Indebtedness. Guarantor does hereby assign to Lender all claims which it
may have or acquire against Borrower or against any assignee or trustee in bankruptcy of Borrower;
provided however, that such assignment shall be effective only for the purpose of assuring to
Lender full payment in legal tender of the Indebtedness. If Lender so requests, any notes or
credit agreements now or hereafter evidencing any debts or obligations of Borrower to Guarantor
shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to
Lender. Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor from time to
time to file financing statements and continuation statements
COMMERCIAL GUARANTY
(Continued)
(Continued)
Loan No. 00004 | Page 3 |
and to execute documents and to take such other actions as Lender deems necessary or appropriate
to perfect, preserve and enforce its rights under this Guaranty.
MISCELLANEOUS
PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty.
Amendments. This Guaranty, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set
forth in this Guaranty. No
alteration of or amendment to this Guaranty shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the
alteration or amendment.
Attorneys Fees: Expenses. Guarantor agrees to pay upon demand all of Lenders
costs and expenses, including Lenders reasonable attorneys fees and Lenders
legal expenses,
incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone
else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lenders reasonable attorneys fees and legal expenses
whether or not there is a lawsuit, including reasonable attorneys fees and legal expenses for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection services. Guarantor also
shall pay all court costs and such additional fees as may be directed by the court.
Caption
Headings Caption headings in this Guaranty are for convenience purposes only and are
not to be used to interpret or define the provisions of this Guaranty.
Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to the
extent not preempted by federal law, the laws of the State of New
York without regard to its
conflicts of law provisions.
Choice of Venue. If there is a lawsuit. Guarantor agrees upon Lenders request to submit to
the jurisdiction of the courts of LOS ANGELES County, State of California.
Integration. Guarantor further agrees that Guarantor has read and fully understands the terms
of this Guaranty; Guarantor has had the opportunity to be advised by Guarantors attorney with
respect to this Guaranty; the Guaranty fully reflects Guarantors intentions and parol
evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies
and holds Lender harmless from all losses, claims, damages, and costs (including Lenders
attorneys fees) suffered or incurred by Lender as a result of any breach by Guarantor of the
warranties, representations and agreements of this paragraph.
Interpretation.
In all cases where there is more than one Borrower or Guarantor, then all
words used in this Guaranty in the singular shall be deemed to have been used in the plural
where the context and construction so require; and where there is more than one Borrower named
in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words
Borrower and Guarantor respectively shall
mean all and any one or more of them. The words
Guarantor, Borrower, and Lender include the heirs, successors, assigns, and transferees
of each of them. If a court finds that any provision of this Guaranty is not valid or should
not be enforced, that fact by itself will not mean that the rest of this Guaranty will not be
valid or enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty
even if a provision of this Guaranty may be found to be invalid or unenforceable. If any one
or more of Borrower or Guarantor are corporations, partnerships, limited liability companies,
or similar entities, it is not necessary for Lender to inquire into the powers of Borrower or
Guarantor or of the officers, directors, partners, managers, or other agents acting or
purporting to act on their behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed under this Guaranty.
Notices. Any notice required to be given under this Guaranty shall be given in writing, and,
except for revocation notices by Guarantor, shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when deposited with a
nationally recognized overnight courier, or, if mailed, when deposited in the United States
mail, as first class, certified or registered mail postage prepaid, directed to the addresses
shown near the beginning of this Guaranty. All revocation notices by Guarantor shall be in
writing and shall be effective upon delivery to Lender as provided in the section of this
Guaranty entitled DURATION OF GUARANTY. Any party may change its address for notices under
this Guaranty by giving formal written notice to the other parties, specifying that the
purpose of the notice is to change the partys address. For notice purposes, Guarantor agrees
to keep Lender informed at all times of Guarantors current address. Unless otherwise provided
or required by law, if there is more than one Guarantor, any notice given by Lender to any
Guarantor is deemed to be notice given to all Guarantors.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Guaranty
unless such waiver is given in writing and signed by Lender. No delay or omission on the part
of Lender in exercising any right shall operate as a waiver of such
right or any other right.
A waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver
of Lenders right otherwise to demand strict compliance with that provision or any other
provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between
Lender and Guarantor, shall constitute a waiver of any of Lenders rights or of any of
Guarantors obligations as to any future transactions. Whenever the consent of Lender is
required under this Guaranty, the granting of such consent by Lender in any instance shall not
constitute continuing consent to subsequent instances where such consent is required and in
all cases such consent may be granted or withheld in the sole discretion of Lender.
Successors and Assigns. Subject to any limitations stated in this Guaranty on transfer of
Guarantors interest, this Guaranty shall be binding upon and inure to the benefit of the
parties, their successors and assigns.
FEDERAL TAX RETURN. Guarantor represents and warrants to Lender that Guarantors most recent
federal income tax return and all schedules attached to such return
(Federal Tax Return)
that have been delivered to Lender are a true and correct
copy of such Federal Tax Return filed with the Internal Revenue Service for the tax period
ending on the date indicated in such Federal Tax Return.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used
in this Guaranty. Unless specifically stated to the contrary, all references to dollar amounts
shall mean amounts in lawful money of the United States of America. Words and terms used in the
singular shall include the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed
to such terms in the Uniform Commercial Code:
Borrower. The word Borrower means GW SERVICES, INC., A CALIFORNIA CORPORATION and includes
all co-signers and co-makers signing the Note and all their successors and assigns.
Guarantor. The word Guarantor means everyone signing this Guaranty, including without
limitation GLACIER WATER SERVICES, INC., A DELAWARE CORPORATION, and in each case, any
signers successors and assigns.
Guarantors Share of the Indebtedness. The words Guarantors Share of the
Indebtedness mean Guarantors indebtedness to Lender as more particularly described in this
Guaranty.
Guaranty. The word Guaranty means this guaranty from Guarantor to Lender.
Indebtedness.
The word Indebtedness means Borrowers indebtedness to Lender as more
particularly described in this Guaranty.
COMMERCIAL GUARANTY
(Continued)
(Continued)
Loan No: 00004 | Page 4 |
Lender. The word Lender means City National Bank, a national banking association, its
successors and assigns.
Note. The word Note means the promissory note dated December 10, 2010, in the original
principal amount of $40,000,000,00 from Borrower to Lender, together with all renewals of,
extensions of, modifications of, refinancings of, consolidations of, and substitutions for the
promissory note or agreement.
Related Documents. The words Related Documents mean all promissory notes, credit agreements,
loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds
of trust, security deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection with the indebtedness.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES
TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON
GUARANTORS EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE
UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED DURATION OF GUARANTY. NO FORMAL
ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED DECEMBER
10, 2010.
GUARANTOR: GLACIER WATER SERVICES, INC., A DELAWARE CORPORATION |
||||
By: | /s/ Brian H. McInerney | |||
BRIAN H. MCINERNEY, CEO of GLACIER WATER | ||||
SERVICES, INC., A DELAWARE CORPORATION | ||||
[Illegible]
August 29, 2007
To whom it may concern:
This letter is to confirm that effective August 29, 2007, Mr. W. David Walters has resigned
as Sr. Vice President and Corporate Secretary for Glacier Water Services, Inc., and is replaced
by Steven D. Stringer, Chief Financial Officer and Corporate Secretary.
I, Steven D. Stringer, certify that I am the Corporate Secretary of the above named corporation
organized under the laws of California, Federal Employer I.D. Number
95-3829620, engaged in business under the trade name of Glacier Water Services, Inc.
Corporate Secretary, and Chief Financial Officer |
||||
/s/ Steven D. Stringer | ||||
Steven D. Stringer | ||||
President and Chief Executive Officer | ||||
/s/ Brian H. McInerney | ||||
Brian H. McInerney | ||||
Glacier Water Services, Inc. 1385 Park Center Drive, Vista, CA 92081-8338
800-GLACIER 760-560-1111 FAX 760-560-3333
www.glacierwater.com
800-GLACIER 760-560-1111 FAX 760-560-3333
www.glacierwater.com