Exhibit 10.10.2
MODIFICATION OF NOTE AND CREDIT AGREEMENT
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This Modification of Note and Credit Agreement ("Modification
Agreement") is entered into effective on June 20, 1996 by and among TOKAI BANK
OF CALIFORNIA, a California banking corporation, hereinafter referred to as
"Lender," GW SERVICES, INC., a California corporation, hereinafter referred to
as "Borrower," and GLACIER WATER SERVICES, INC., a Delaware corporation,
hereinafter referred to as "Guarantor."
RECITALS
A. On or about February 14, 1994 Lender, Borrower and Guarantor entered
into a Credit Agreement (hereinafter the "Credit Agreement") dated February 14,
1994.
B. Pursuant to the terms of the Credit Agreement the Borrower executed a
Promissory Note (hereinafter the "Note") dated February 28, 1994 payable to the
order of the Lender in the full amount of $12,000,000.00.
C. The Lender, the Borrower and the Guarantor executed those certain
Modifications of Note and Credit Agreement dated February 13, 1995, amending
certain terms and provisions of said Note and Credit Agreement, which includes
the increase of the credit facility from $12,000,000.00 to $16,000,000.00.
D. The Lender, the Borrower and the Guarantor executed that certain
Modification of Note and Credit Agreement dated February 6, 1996, amending
certain terms and provisions of said Note and Credit Agreement.
E. All capitalized terms herein which are not otherwise defined herein
shall have the meanings set forth in the Credit Agreement.
F. The Lender and Guarantor have requested and the Lender has agreed to
further modify the terms of the Note and Credit Agreement as set forth below.
NOW THEREFORE, for valuable consideration and the mutual promises and
agreements hereinafter contained, Lender, Borrower and Guarantor hereby amend as
follows, the terms and provisions of the Note and Credit Agreement as previously
amended:
A. The Note, as previously amended, is modified as follows:
1. In the first paragraph of the Note the amount which was previously
amended to read "Sixteen Million and No/100 Dollars ($16,000,000.00)" is amended
to read "Eighteen Million and No/100 Dollars ($18,000,000.00)."
2. In paragraph (a.) on page one of the Note, as previously amended,
the date which reads "June 1, 1997" is hereby further amended to read "July 1,
1998."
B. The Credit Agreement, as previously amended, is modified as follows:
1. The definition of the following capitalized term in Section 1.1 is
amended in entirety to read as follows:
"Primary Maturity Date" means and refers to July 1, 1998.
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2. In Section 2.1 the dollar amount which was previously amended to
read "Sixteen Million and No/100 Dollars ($16,000,000.00)" is hereby amended to
read "Eighteen Million and No/100 Dollars ($18,000,000.00)."
3. In Section 2.3 the dollar amount which was previously amended to
read "Sixteen Million and No/100 Dollars ($16,000,000.00)" is hereby amended to
read "Eighteen Million and No/100 Dollars ($18,000,000.00)."
4. In Section 2.4 the dollar amount which was previously amended to
read "Sixteen Million and No/100 Dollars ($16,000,000.00)" is hereby amended to
read "Eighteen Million and No/100 Dollars ($18,000,000.00)" and the date which
was previously amended to read "June 1, 2002" is hereby amended to read "July 1,
2003."
5. In Section 2.7 the date which was previously amended to read "June
1, 2002" is hereby amended to read "July 1, 2003."
6. In Section 6.1(m) the dollar amount which reads "One Hundred
Thousand Dollars ($100,000.00)" is hereby amended to read "Three Hundred
Thousand Dollars ($300,000.00)."
7. In Section 6.16(f) the dollar amount which reads "One Hundred
Thousand Dollars ($100,000.00)" is hereby amended to read "Three Hundred
Thousand Dollars ($300,000.00)."
8. In Exhibit N-1 to the Credit Agreement the dollar amount which was
previously amended to read "Sixteen
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Million Dollars and No/100 ($16,000,000.00)" is hereby amended to read "Eighteen
Million and No/100 Dollars ($18,000,000.00)."
9. In Exhibit N-2 to the Credit Agreement the dollar amount which was
previously amended to read "Sixteen Million and No/100 Dollars ($16,000,000.00)"
is hereby amended to read "Eighteen Million and No/100 Dollars
($18,000,000.00)."
C. Borrower hereby represents and warrants to Lender and covenants and
agrees with Lender as follows:
1. Borrower is a corporation, duly organized and validly existing and
in good standing under the laws of the State of California. There have been no
amendments to the Articles of Incorporation (Articles) of the Borrower
subsequent to February 1, 1994.
2. Borrower has full legal right, power and authority to enter into
and perform this Modification Agreement. The execution and delivery of this
Modification Agreement by Borrower and the consummation by Borrower of the
transactions contemplated hereby have been duly authorized by all necessary
action on behalf of Borrower. This Modification Agreement is a valid and
binding obligation of Borrower, enforceable against Borrower in accordance with
its terms.
3. Neither the execution and delivery of this Modification Agreement
by Borrower nor the consummation by Borrower of the transactions contemplated
hereby conflicts with or constitutes a violation or a default under the
Articles, any statute, law, regulation, order to decree applicable to Borrower,
or any contract, commitment, agreement, arrangement or restriction of any kind
to which Borrower is a party, by which Borrower is bound or to which any of
Borrower's property or assets are subject.
4. There are no actions, suits or proceedings pending, or to the
knowledge of Borrower, threatened against or affecting Borrower in relation to
its obligations to Lender, or involving the validity and enforceability of this
Modification Agreement, the Loan Documents, or the priority of any liens given
by Borrower to Lender in accordance with the Loan Documents, at law or in
equity, or before or by any governmental agency, or which could have material
adverse effect on the financial condition, operations, properties, assets,
liabilities or earning of Borrower, or the ability of Borrower to perform its
obligations to Lender.
D. This Modification Agreement is, in part, a reaffirmation of the
obligations and indebtedness of Borrower to
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Lender, as evidenced by the Loan Documents. Therefore, Borrower and Guarantor
represent and warrant that, except as specified herein, all of the terms and
conditions of the Loan Documents are and shall remain in full force an effect,
without waiver or modification of any kind whatsoever, and are ratified and
confirmed in all respects.
E. This Modification Agreement shall be binding upon and inure to the
benefit of successors and assignees of the parties hereto.
F. Borrower and Guarantor, by execution of this Modification
Agreement, hereby each declare that it has no set-offs, counterclaims, defenses
or other causes of action against Bank arising out of the Loan, evidenced by the
Note or any document executed in connection with the Loan. To the extent that
any such set-offs, counterclaims, defenses or other causes of action may exist,
such matters are hereby waived, released and forever discharged by Borrower and
Guarantor.
G. This Modification Agreement may only be modified or amended by
written agreement duly executed by the party to be charged.
H. This Modification Agreement constitutes the product of the negotiation
of the parties hereto and the enforcement hereof shall be interpreted in a
neutral manner, and not more strongly for or against any party based upon the
source of the draftsmanship hereof.
I. This Modification Agreement is not a novation, nor, except as provided
for herein, it is to be construed as a release or modification of any of the
terms, conditions, warranties, waivers, or rights set forth in the Loan
Documents. Nothing contained in this Modification Agreement shall be deemed to
constitute a waiver by Lender or any required performance by Borrower, or to
require any forbearance or extension other than that which is specifically
agreed to herein by Lender, and no other forbearance or extension is to be
implied from the language used herein, by operations of law, or otherwise.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement this
12th day of March, 1996.
LENDER: BORROWER:
TOKAI BANK OF CALIFORNIA, GW SERVICES, INC.,
a California banking a California corporation
corporation
By:/s/ Xxxx X. Xxxxxx By:/s/ Xxxxx X. Xxxxxx
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Xxxx X. Xxxxxx Xxxxx X. Xxxxxx
Vice President President
San Diego Office
By: By:/s/ Xxxx X. Xxxxxxxxx
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Xxxxxxxxxx X. Xxxxxxx Xxxx X. Xxxxxxxxx
Assistant Vice President Vice President, Service
Loan Documentation Support
Department
GUARANTOR:
GLACIER WATER SERVICES, INC.,
a Delaware corporation
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President
By:/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Vice President,
Controller
Secretary
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