EXHIBIT 10.10
GUARANTY
THIS GUARANTY is made as of this 28th day of November, 2000, by
Cassco Ice & Cold Storage, Inc., a Virginia corporation, Packaged Ice IP, Inc.,
a Nevada corporation, Packaged Ice Factory, Inc., a Nevada corporation, Reddy
Ice Corporation, a Nevada corporation, and Southern Bottled Water Company, Inc.,
a Nevada corporation (each such Person, together with each other Person who
becomes a party to this Agreement by execution of a joinder in the form of
EXHIBIT A attached hereto, is referred to individually as a "GUARANTOR" and
collectively as the "GUARANTORS") in favor of BANK OF AMERICA, N.A., as agent
("AGENT") on behalf of the Lenders (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, Packaged Ice, Inc., a Texas corporation ("BORROWER"), has
entered into that certain Amended and Restated Credit Agreement of even date
herewith (the same, as it may be amended, restated, modified or supplemented and
in effect from time to time, being herein referred to as the "CREDIT AGREEMENT")
with Agent (successor agent to Antares Capital Corporation f/k/a Antares
Leveraged Capital Corp.) for the benefit of all lenders and individually as a
lender (together with all other "Lenders" thereunder as defined therein, the
"LENDERS"), Antares Capital Corporation, as co-agent, and the other Lenders
parties thereto, providing for the Lenders to make available to the Borrower
certain term and revolving credit facilities on the terms and conditions set
forth therein;
WHEREAS, the Borrower will become liable for the "Obligations" (as
that term is defined in the Credit Agreement) including, without limitation,
loans and other financial accommodations from the Lenders (including Agent in
its individual capacity) under the Credit Agreement and the other Loan Documents
referred to therein; and
WHEREAS, the Guarantors are Subsidiaries of Borrower and, as such,
will derive substantial benefit and advantage from the loans and other financial
accommodations available to the Borrower set forth in the Credit Agreement, and
it will be to each Guarantor's direct interest and economic benefit to assist
the Borrower in procuring said loans and other financial accommodations from the
Lenders and the Agent;
NOW, THEREFORE, for and in consideration of the premises and in
order to induce the Agent and the Lenders to enter into the Credit Agreement and
to make loans and financial accommodations to the Borrower thereunder, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Guarantors hereby agree as follows:
1. DEFINITIONS: Capitalized terms used herein which are not
otherwise defined herein are used with the meanings ascribed to such terms in
the Credit Agreement.
2. GUARANTY OF PAYMENT.
(a) Each Guarantor, jointly and severally, hereby unconditionally
and irrevocably guaranties the full and prompt payment to the Agent and the
Lenders, when due, upon demand, at maturity or by reason of acceleration or
otherwise and at all times thereafter, of any and all of the Obligations.
(b) Each Guarantor acknowledges that valuable consideration supports
this Guaranty, including, without limitation, the consideration set forth in the
recitals above as well as any commitment to lend, extension of credit or other
financial accommodation, whether heretofore or hereafter made by the Lenders or
the Agent to the Borrower; any extension, renewal or replacement of any of the
Obligations; any forbearance with respect to any of the Obligations or
otherwise; any cancellation of an existing guaranty; any purchase of any of the
Borrower's assets by the Lenders or the Agent; or any other valuable
consideration.
(c) Each Guarantor agrees that all payments under this Guaranty
shall be made in United States currency, at the same place and in the same
manner as provided for the Obligations.
3. COSTS AND EXPENSES.
Each Guarantor, jointly and severally, agrees to pay on demand, if
not paid by the Borrower, all reasonable costs and expenses of every kind
incurred by the Agent or the Lenders: (a) in enforcing this Guaranty, (b) in
collecting any of the Obligations from the Borrower or any Guarantor, (c) in
realizing upon or protecting any collateral for this Guaranty or for payment of
any of the Obligations, and (d) for any other purpose related to the Obligations
or this Guaranty. "Costs and expenses" as used in the preceding sentence shall
include, without limitation, reasonable attorneys' fees incurred by the Agent or
any Lender in retaining counsel for advice, suit, appeal, any insolvency or
other proceedings under the Bankruptcy Code or otherwise, or for any purpose
specified in the preceding sentence.
4. NATURE OF GUARANTY: CONTINUING, ABSOLUTE AND UNCONDITIONAL.
(a) This Guaranty is and is intended to be a continuing guaranty
of payment of the Obligations, and not of collectibility, and is and is intended
to be independent of and in addition to any other guaranty, indorsement,
collateral or other agreement held by the Agent or the Lenders therefor or with
respect thereto, whether or not furnished by the Guarantor. Neither Agent nor
any Lender shall be required to prosecute collection, enforcement or other
remedies against Borrower, any other Guarantor or guarantor of the Obligations
or any other Person, or to enforce or resort to any of the Collateral or other
rights or remedies pertaining thereto, before calling on a Guarantor for
payment. The obligations of each Guarantor to repay the Obligations
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hereunder shall be unconditional. Each Guarantor shall have no right of
subrogation with respect to any payments made by any Guarantor hereunder until
the Obligations have been paid in full, and hereby waives any benefit of, and
any right to participate in, any security or collateral given to the Agent or
any Lender to secure payment of the Obligations, and each Guarantor agrees that
it will not take any action to enforce any obligations of the Borrower to any
Guarantor prior to the Obligations being finally and irrevocably paid in full
and the termination of the Commitments under the Credit Agreement, PROVIDED
that, in the event of the bankruptcy or insolvency of the Borrower, the Agent,
on behalf of the Lenders, shall be entitled notwithstanding the foregoing, to
file in the name of any Guarantor or in its own name a claim for any and all
indebtedness owing to a Guarantor by the Borrower (exclusive of this Guaranty),
vote such claim and to apply the proceeds of any such claim to the Obligations.
(b) For the further security of the Agent and the Lenders and
without in any way diminishing the liability of the Guarantors, following the
occurrence and during the continuance of an Event of Default, all debts and
liabilities, present or future of the Borrower to the Guarantors and all monies
received from the Borrower or for its account by the Guarantors in respect
thereof shall be received in trust for the Agent and the Lenders and forthwith
upon receipt shall be paid over to the Agent, for the benefit of the Agent and
the Lenders, until all of the Obligations has been paid in full. This assignment
and postponement is independent of and severable from this Guaranty and shall
remain in full effect whether or not any Guarantor is liable for any amount
under this Guaranty.
(c) This Guaranty is absolute and unconditional and shall not be
changed or affected by any representation, oral agreement, act or thing
whatsoever, except as herein provided. This Guaranty is intended by the
Guarantors to be the final, complete and exclusive expression of the guaranty
agreement between the Guarantors and the Agent, for its own benefit and on
behalf of the Lenders. No modification or amendment of any provision of this
Guaranty shall be effective against Agent or a Guarantor unless in writing and
signed by a duly authorized officer of the Agent, individually and on behalf of
the Lenders and by such Guarantor.
(d) Prior to the Obligations being finally and irrevocably paid in
full and the termination of the Commitments under the Credit Agreement, each
Guarantor hereby agrees not to assert or enforce (whether by or in a legal or
equitable proceeding or otherwise) any "claims" (as defined in Section 101(4) of
the Bankruptcy Code), whether arising under any law, ordinance, rule,
regulation, order, policy or other requirement of any domestic or foreign
government or any instrumentality or agency thereof, having jurisdiction over
the conduct of its business or assets or otherwise, to which the Guarantors are
or would at any time be entitled by virtue of its obligations hereunder, any
payment made pursuant hereto or the exercise by Lender of its rights with
respect to the Collateral, including any such claims to which such Guarantors
may be entitled as a result of any right of subrogation, exoneration or
reimbursement.
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5. CERTAIN RIGHTS AND OBLIGATIONS.
(a) Each Guarantor authorizes the Agent and the Lenders, without
notice, demand or any reservation of rights against such Guarantor and without
affecting such Guarantor's obligations hereunder, from time to time:
(i) to renew, extend, increase, accelerate or otherwise
change the time for payment of, the terms of or the interest on the Obligations
or any part thereof or grant other indulgences to the Borrower or others;
(ii) to accept from any Person and hold collateral for the
payment of the Obligations or any part thereof, and to modify, exchange, enforce
or refrain from enforcing, or release, compromise, settle, waive, subordinate or
surrender, with or without consideration, such collateral or any part thereof;
(iii) to accept and hold any indorsement or guaranty of
payment of the Obligations or any part thereof, and to discharge, release or
substitute any such obligation of any such indorser or guarantor, or to
discharge, release or compromise any Guarantor, or any other Person who has
given any security interest in any collateral as security for the payment of the
Obligations or any part thereof, or any other Person in any way obligated to pay
the Obligations or any part thereof, and to enforce or refrain from enforcing,
or compromise or modify, the terms of any obligation of any such indorser,
guarantor, or Person;
(iv) to dispose of any and all collateral securing the
Obligations in any manner as Agent or the Lenders, in their sole discretion, may
deem appropriate, and to direct the order or manner of such disposition and the
enforcement of any and all endorsements and guaranties relating to the
Obligations or any part thereof as the Agent or the Lenders in their sole
discretion may determine;
(v) except as otherwise provided in the Credit Agreement, to
determine the manner, amount and time of application of payments and credits, if
any, to be made on all or any part of any component or components of the
Obligations (whether principal, interest, fees, costs, and expenses, or
otherwise) including, without limitation, the application of payments received
from any source to the payment of indebtedness other than the Obligations even
though Agent or the Lenders might lawfully have elected to apply such payments
to the Obligations to amounts which are not covered by this Guaranty; and
(vi) to take advantage or refrain from taking advantage of
any security or accept or make or refrain from accepting or making any
compositions or arrangements when and in such manner as the Agent or the
Lenders, in their sole discretion, may deem appropriate;
and generally to do or refrain from doing any act or thing which might
otherwise, at law or in equity, release the liability of such Guarantor as a
guarantor or surety in whole or in part, and in no case shall the Agent or the
Lenders be responsible or shall any Guarantor be released either in
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whole or in part for any act or omission in connection with the Agent or the
Lenders having sold any security at less than its value.
(b) Following the occurrence and during the continuance of an
Event of Default, and upon demand by Agent, each Guarantor, jointly and
severally, hereby agrees to pay the Obligations to the extent hereinafter
provided:
(i) without deduction by reason of any setoff, defense
(other than payment) or counterclaim of the Borrower or any other Guarantor;
(ii) without requiring presentment, protest or notice of
nonpayment, notice of default, notice of acceleration, notice of intent to
accelerate or any other notice of any kind to any Guarantor, to the Borrower or
to any other Person;
(iii) without demand for payment or proof of such demand or
filing of claims with a court in the event of receivership, bankruptcy or
reorganization of the Borrower or any other Guarantor;
(iv) without requiring the Agent or the Lenders to resort
first to the Borrower (this being a guaranty of payment and not of collection),
to any other Guarantor, or to any other guaranty or any collateral which the
Agent or the Lenders may hold;
(v) without requiring notice of acceptance hereof or assent
hereto by the Agent or the Lenders; and (vi) without requiring notice that any
of the Obligations has been incurred, extended or continued or of the reliance
by the Agent or the Lenders upon this Guaranty;
all of which each Guarantor hereby waives.
(c) Each Guarantor's obligation hereunder shall not be affected by
any of the following, all of which such Guarantor hereby waives:
(i) any failure to perfect or continue the perfection of any
security interest in or other lien on any collateral securing payment of any of
the Obligations or any Guarantor's obligation hereunder;
(ii) the invalidity, unenforceability, propriety of manner of
enforcement of, or loss or change in priority of any Loan Document or any such
security interest or other lien or guaranty of the Obligations;
(iii) any failure to protect, preserve or insure any such
collateral;
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(iv) failure of a Guarantor to receive notice of any intended
disposition of such collateral;
(v) any defense arising by reason of the cessation from any
cause whatsoever of liability of the Borrower including, without limitation, any
failure, negligence or omission by the Agent or the Lenders in enforcing their
claims against the Borrower;
(vi) any release, settlement or compromise of any obligation
of the Borrower or any other Guarantor;
(vii) the invalidity or unenforceability of any of the
Obligations;
(viii) any change of ownership of the Borrower or any other
Guarantor or the insolvency, bankruptcy or any other change in the legal status
of the Borrower or any other Guarantor;
(ix) any change in, or the imposition of, any law, decree,
regulation or other governmental act which does or might impair, delay or in any
way affect the validity, enforceability or the payment when due of the
Obligations;
(x) the existence of any claim, setoff or other rights which
the Guarantor, Borrower, any other Guarantor or guarantor of the Obligations or
any other Person may have at any time against the Agent, any Lender or the
Borrower in connection herewith or any unrelated transaction;
(xi) any Lender's election, in any case instituted under
chapter 11 of the Bankruptcy Code, of the application of section 1111(b)(2) of
the Bankruptcy Code;
(xii) any use of cash collateral, or grant of a security
interest by the Borrower, as debtor in possession, under sections 363 or 364 of
the Bankruptcy Code;
(xiii) the disallowance of all or any portion of any of the
Agent's or the Lenders' claims for repayment of the Obligations under sections
502 or 506 of the Bankruptcy Code; or
(xiv) any other fact or circumstance which might otherwise
constitute grounds at law or equity for the discharge or release of a Guarantor
from its obligations hereunder, all whether or not such Guarantor shall have had
notice or knowledge of any act or omission referred to in the foregoing clauses
(i) through (xiii) of this subsection 5(c).
6. REPRESENTATIONS AND WARRANTIES.
Each Guarantor further represents and warrants to the Agent and the
Lenders that: (a) such Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and has full power, authority and legal right to
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own its property and assets and to transact the business in which it is engaged;
(b) such Guarantor has full power, authority and legal right to execute and
deliver, and to perform its obligations under, this Guaranty, and has taken all
necessary action to authorize the guarantee hereunder on the terms and
conditions of this Guaranty and to authorize the execution, delivery and
performance of this Guaranty; and (c) this Guaranty has been duly executed and
delivered by such Guarantor and constitutes a legal, valid and binding
obligation of such Guarantor enforceable against such Guarantor in accordance
with its terms, except to the extent that such enforceability is subject to
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and
moratorium laws and other laws of general application affecting enforcement of
creditors' rights generally, or the availability of equitable remedies, which
are subject to the discretion of the court before which an action may be
brought.
7. NEGATIVE COVENANTS.
Each Guarantor covenants with the Agent and the Lenders that such
Guarantor shall not grant any security interest in or permit any lien, claim or
encumbrance upon any of its assets in favor of any Person other than liens and
security interests in favor of the Agent and the Lenders and other Permitted
Liens.
8. TERMINATION.
This Guaranty shall remain in full force and effect until all of the
Obligations shall be finally and irrevocably paid in full and the commitments
under the Credit Agreement shall have been terminated. Thereafter, but subject
to the following, the Agent shall take such action and execute such documents as
the Guarantors may request (and at the Guarantors' cost and expense) in order to
evidence the termination of this Guaranty. Payment of all of the Obligations
from time to time shall not operate as a discontinuance of this Guaranty. Each
Guarantor further agrees that, to the extent that the Borrower makes a payment
or payments to the Agent or any of the Lenders on the Obligations, or the Agent
or the Lenders receive any proceeds of collateral securing the Obligations or
any other payments with respect to the Obligations, which payment or receipt of
proceeds or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be returned or repaid to
the Borrower, its estate, trustee, receiver, debtor in possession or any other
Person, including, without limitation, the Guarantors, under any insolvency or
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such payment, return or repayment, the obligation or part thereof
which has been paid, reduced or satisfied by such amount shall be reinstated and
continued in full force and effect as of the date when such initial payment,
reduction or satisfaction occurred, and this Guaranty shall continue in full
force notwithstanding any contrary action which may have been taken by the Agent
or the Lenders in reliance upon such payment, and any such contrary action so
taken shall be without prejudice to the Agent's or the Lenders' rights under
this Guaranty and shall be deemed to have been conditioned upon such payment
having become final and irrevocable.
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9. GUARANTY OF PERFORMANCE.
Each Guarantor also guaranties the full, prompt and unconditional
performance of all obligations and agreements of every kind owed or hereafter to
be owed by the Borrower to the Agent or the Lenders under the Credit Agreement
and the other Loan Documents to which the Borrower is a party. Every provision
for the benefit of the Agent or the Lenders contained in this Guaranty shall
apply to the guaranty of performance given in this paragraph.
10. ASSUMPTION OF LIENS AND OBLIGATIONS.
To the extent that a Guarantor has received or shall hereafter
receive distributions or transfers from the Borrower of property or cash that
are subject, at the time of such contribution, to liens and security interests
in favor of the Agent or the Lenders in accordance with the Credit Agreement,
such Guarantor hereby expressly agrees that (i) it shall hold such assets
subject to such liens and security interests and subject to the terms of the
Credit Agreement, and (ii) it shall be liable for the payment of the Obligations
secured thereby. Each Guarantor's obligations under this Section 10 shall be in
addition to its obligations as set forth in other sections of this Guaranty and
not in substitution therefor or in lieu thereof.
11. MISCELLANEOUS.
(a) The terms "Borrower" and the "Guarantor" as used in this
Guaranty shall include: (i) any successor individual or individuals,
association, partnership or corporation to which all or substantially all of the
business or assets of the Borrower or such Guarantor shall have been transferred
and (ii) any other corporation or entity into or with which the Borrower or such
Guarantor shall have been merged, consolidated, reorganized, or absorbed.
(b) Without limiting any other right of the Agent or any of the
Lenders, whenever the Agent or the Lenders have the right to declare any of the
Obligations to be immediately due and payable (whether or not it has been so
declared), Agent and the Lenders at their sole election without notice to the
undersigned may appropriate and set off against the Obligations:
(i) any and all indebtedness or other moneys due or to
become due to any Guarantor by the Agent or the Lenders in any capacity; and
(ii) any credits or other property belonging to any Guarantor
(including all account balances, whether provisional or final and whether or not
collected or available) at any time held by or coming into the possession of the
Agent or any of the Lenders, or any affiliate of the Agent or any of the
Lenders, whether for deposit or otherwise;
whether or not the Obligations or the obligation to pay such moneys owed by the
Agent or the Lenders is then due, and the Agent or the Lenders shall be deemed
to have exercised such right of set off immediately at the time of such election
even though any charge therefor is made or
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entered on the Agent's or the Lenders' records subsequent thereto. The Agent and
Lender agrees to notify such Guarantor in a reasonably practicable time of any
such set-off; however, failure to so notify such Guarantor shall not affect the
validity of any set-off.
(c) Each Guarantor's obligation hereunder is to pay the
Obligations in full when due according to the Credit Agreement to the extent
provided herein, and shall not be affected by any stay or extension of time for
payment by the Borrower or any other Guarantor resulting from any proceeding
under the Bankruptcy Code or any similar law.
(d) No course of dealing between the Borrower or any Guarantor and
the Agent or the Lenders and no act, delay or omission by the Agent or Lenders
in exercising any right or remedy hereunder or with respect to any of the
Obligations shall operate as a waiver thereof or of any other right or remedy,
and no single or partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy. The Agent or the
Lenders may remedy any default by the Borrower under any agreement with the
Borrower or with respect to any of the Obligations in any reasonable manner
without waiving the default remedied and without waiving any other prior or
subsequent default by the Borrower. All rights and remedies of the Lenders
hereunder are cumulative.
(e) This Guaranty shall inure to the benefit of the Agent and the
Lenders under the Credit Agreement, and their successors and assigns.
(f) Captions of the sections of this Guaranty are solely for the
convenience of the Agent, the Lenders and the Guarantors, and are not an aid in
the interpretation of this Guaranty and do not constitute part of the agreement
of the parties set forth herein.
(g) If any provision of this Guaranty is unenforceable in whole or
in part for any reason, the remaining provisions shall continue to be effective.
(h) EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR TEXAS STATE COURT SITTING IN DALLAS
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AND EACH
GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF AGENT TO BRING
PROCEEDINGS AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ANY GUARANTOR AGAINST AGENT OR ANY LENDER OR ANY
AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTY SHALL BE BROUGHT
ONLY IN A COURT IN DALLAS, TEXAS.
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(i) EACH GUARANTOR DESIGNATES AND APPOINTS CT CORPORATION SYSTEM
AND SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY SUCH GUARANTOR WHICH
IRREVOCABLY AGREE IN WRITING TO SO SERVE AS ITS AGENT TO RECEIVE ON ITS BEHALF
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE
BEING HEREBY ACKNOWLEDGED BY EACH GUARANTOR TO BE EFFECTIVE AND BINDING SERVICE
IN EVERY RESPECT. A COPY OF ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY
REGISTERED MAIL TO SUCH GUARANTOR AT ITS ADDRESS PROVIDED IN SUBSECTION 11(k)
EXCEPT THAT UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL
SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT
APPOINTED BY ANY GUARANTOR REFUSES TO ACCEPT SERVICE, GUARANTOR HEREBY AGREES
THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN
SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(j) THIS GUARANTY AND THE TRANSACTIONS EVIDENCED HEREBY SHALL BE
CONSTRUED UNDER THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
AND DECISIONS OF THE STATE OF TEXAS.
(k) NOTICES. All notices, approvals, requests, demands and other
communications hereunder shall be in writing and delivered by hand or by
nationally recognized overnight courier, or sent by first class mail or sent by
telecopy (with such telecopy to be confirmed promptly in writing sent by first
class mail), sent:
(a) if to any Guarantor, to
such Guarantor:
------------------------
c/o Packaged Ice, Inc.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
(b) if to Agent, to: Bank of America, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxx Xxxx
Facsimile: (000) 000-0000
or to such other address or addresses or telecopy number or numbers as any party
hereto may most recently have designated in writing to the other party by such
notice. All such communications shall be deemed to have been given or made (i)
if delivered in person, when delivered, (ii) if delivered by telecopy, on the
date of transmission if transmitted on a Business
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Day before 4:00 p.m. Dallas time, otherwise on the next Business Day, (iii) if
delivered by overnight courier, one (1) Business Day after delivery to the
courier properly addressed and (iv) if mailed, three (3) Business Days after
deposited in the United States mail, certified or registered.
12. WAIVERS.
(a) EACH GUARANTOR WAIVES THE BENEFIT OF ALL VALUATION, APPRAISAL
AND EXEMPTION LAWS.
(b) UPON THE OCCURRENCE OF A DEFAULT OR EVENT OF DEFAULT UNDER THE
CREDIT AGREEMENT, EACH GUARANTOR HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING
OF ANY KIND PRIOR TO THE EXERCISE BY THE AGENT OR THE LENDERS OF THEIR RIGHTS TO
REPOSSESS THE COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY
UPON THE COLLATERAL WITHOUT PRIOR NOTICE OR HEARING. EACH GUARANTOR ACKNOWLEDGES
THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS
TRANSACTION AND THIS GUARANTY.
(c) EACH GUARANTOR WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
GUARANTY, OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY AGENT OR ANY LENDER. EACH GUARANTOR
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH GUARANTOR FURTHER AGREES
THAT ITS RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO
ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART,
TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR ANY PROVISION
HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.
13. LIMITATION ON GUARANTEED OBLIGATIONS.
Notwithstanding any provision herein contained to the contrary, each
Guarantor's liability hereunder shall be limited to an amount not to exceed as
of any date of determination, the maximum amount which could be claimed by the
Agent and Lenders from such Guarantor under this Guaranty without rendering such
claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy
Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform
Fraudulent Conveyance Act or similar statute or common law after taking into
account, among other things, such Guarantor's right of contribution and
indemnification from each other Guarantor under SECTION 14 hereof.
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14. CONTRIBUTION WITH RESPECT TO GUARANTEED OBLIGATIONS.
(a) To the extent that any Guarantor shall make a payment under this
Guaranty of all or any of the Obligations (a "GUARANTOR PAYMENT") which, taking
into account all other Guarantor Payments then previously or concurrently made
by the other Guarantors, exceeds the amount which such Guarantor would otherwise
have paid if each Guarantor had paid the aggregate Obligations satisfied by such
Guarantor Payment in the same proportion that such Guarantor's "Allocable
Amount" (as defined below) (in effect immediately prior to such Guarantor
Payment) bore to the aggregate Allocable Amounts of all of Guarantors in effect
immediately prior to the making of such Guarantor Payment, THEN, following
irrevocable payment in full of the Obligations and termination of the
Commitments, such Guarantor shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each of the other
Guarantors for the amount of such excess, PRO RATA based upon their respective
Allocable Amounts in effect immediately prior to such Guarantor Payment.
(b) As of any date of determination, the "ALLOCABLE AMOUNT" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This SECTION 14 is intended only to define the relative rights
of Guarantors and nothing set forth in this SECTION 14 is intended to or shall
impair the obligations of Guarantors, jointly and severally, to pay any amounts
as and when the same shall become due and payable in accordance with the terms
of this Guaranty.
(d) The rights of the parties under this SECTION 14 shall be
exercisable upon the full and irrevocable payment of the Obligations and the
termination of the Credit Agreement and the other Loan Documents.
(e) The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets of any Guarantor to which
such contribution and indemnification is owing.
15. TEXAS USURY SAVINGS CLAUSE.
In no event shall any interest rate on the Obligations exceed the
maximum rate legally chargeable by any Lender under applicable law for such
Lender (the "MAXIMUM RATE"). No provision of this Guaranty shall require the
payment or the collection of interest in excess of the maximum amount permitted
by applicable law. If any excess of interest in such respect is hereby provided
for, or shall be adjudicated to be so provided, in this Guaranty or otherwise in
connection with Obligations, no Guarantor or successor or assign of any
Guarantor shall be obligated to pay the excess amount of such interest or any
other excess sum paid for the use, forbearance, or detention of sums paid in
connection with the Obligations. In the event any
12
Lender ever receives, collects or applies as interest any such sum, such amount
which would be in excess of the maximum amount permitted by applicable law shall
be applied as a payment and reduction of the principal of the Obligations (in
the inverse order of maturity); and, if the principal of the Obligations has
been paid in full, any remaining excess shall forthwith be paid to the
Guarantors. In determining whether or not the interest paid or payable exceeds
the Maximum Rate, the Guarantors and each Lender shall, to the extent permitted
by applicable law, (i) characterize any non-principal payment as an expense, fee
or premium rather than as interest, (ii) exclude voluntary prepayments made by
the Borrower and the effect thereof, and (iii) amortize, prorate, allocate and
spread in equal or unequal parts the total amount of interest throughout the
entire contemplated term of the Obligations so that interest for the entire term
does not exceed the Maximum Rate.
16. EFFECT OF RESTATEMENT.
This Guaranty amends, restates and supersedes that certain Guaranty
dated as of April 30, 1998 among the Guarantors and Antares Leveraged Capital
Corp., as agent for the benefit of the Lenders (as defined therein) and
predecessor to Agent (as further amended, restated, modified or supplemented
from time to time, the "Original Guaranty") (to the extent the Original Guaranty
relates to Guarantors as guarantors thereunder); provided, that all references
in the other Loan Documents to the Original Guaranty shall be deemed to refer
without further amendment to this Guaranty.
17. CALIFORNIA WAIVER. TO THE EXTENT, IF ANY, THAT THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS REQUIRE(S) ANY GUARANTOR TO PAY ANY CHARGE,
FEE OR PENALTY FOR ANY PREPAYMENT RESULTING FROM AN ACCELERATION OF THE MATURITY
DATE OF PRINCIPAL AND ACCRUED INTEREST UNDER THIS LOAN (A) EACH GUARANTOR HEREBY
EXPRESSLY AGREES TO SUCH PAYMENT AND WAIVES THE PROTECTIONS OF SECTION 2954.10
OF THE CALIFORNIA CIVIL CODE WITH RESPECT THERETO AND (2) EACH GUARANTOR, BY ITS
EXECUTION HEREOF, AND EACH LENDER, BY ITS EXECUTION HEREOF AND/OR BY ITS
ACCEPTANCE OF THE BENEFITS HEREOF, HEREBY REPRESENTS, WARRANTS, ACKNOWLEDGES AND
AGREES THAT INDIVIDUAL WEIGHT HAS BEEN GIVEN TO THE CONSIDERATION IN THIS
13
TRANSACTION FOR THE ABOVE WAIVER AND AGREEMENT AND THAT LENDERS HAVE MADE THE
LOAN IN RELIANCE UPON SUCH AGREEMENTS AND WAIVER AND WOULD NOT HAVE MADE THE
LOAN WITHOUT SUCH AGREEMENTS AND WAIVER.
-------------------------------------------
INITIALS OF CASSCO ICE & COLD STORAGE, INC.
-------------------------------------------
INITIALS OF PACKAGED ICE IP, INC.
-------------------------------------------
INITIALS OF PACKAGED ICE FACTORY, INC.
-------------------------------------------
INITIALS OF REDDY ICE CORPORATION
-------------------------------------------
INITIALS OF SOUTHERN BOTTLED WATER COMPANY, INC.
14
IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the
date first written above.
CASSCO ICE & COLD STORAGE, INC., a
Virginia corporation
By:
-------------------------------
Title:
---------------------------
PACKAGED ICE IP, INC., a
Nevada corporation
By:
-------------------------------
Title:
---------------------------
PACKAGED ICE FACTORY, INC., a
Nevada corporation
By:
-------------------------------
Title:
---------------------------
REDDY ICE CORPORATION, a
Nevada corporation
By:
-------------------------------
Title:
---------------------------
SOUTHERN BOTTLED WATER COMPANY, INC., a
Nevada corporation
By:
-------------------------------
Title:
---------------------------
S-1
EXHIBIT A
FORM OF JOINDER
JOINDER TO GUARANTY
The undersigned, ____________________ a _____________, hereby joins
in the execution of that certain Guaranty dated as of November 28, 2000 (as
amended to the date hereof, the "Guaranty"), by Cassco Ice & Cold Storage, Inc.,
Packaged Ice IP, Inc., Packaged Ice Factory, Inc., Reddy Ice Corporation and
Southern Bottled Water Company, Inc. and each other Person that becomes a
Guarantor thereunder after the date and pursuant to the terms thereof, to and in
favor of Bank of America, N.A., as Agent. By executing this Joinder, the
undersigned hereby agrees that it is a Guarantor thereunder with the same force
and effect as if originally named therein as a Guarantor. The undersigned agrees
to be bound by all of the terms and provisions of the Guaranty and represents
and warrants that the representations and warranties set forth in Section 6 of
the Guaranty are, with respect to the undersigned, true and correct as of the
date hereof. Each reference to a Guarantor in the Guaranty shall be deemed to
include the undersigned.
CALIFORNIA WAIVER. TO THE EXTENT, IF ANY, THAT THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS REQUIRE(S) ANY GUARANTOR TO PAY ANY CHARGE, FEE OR PENALTY
FOR ANY PREPAYMENT RESULTING FROM AN ACCELERATION OF THE MATURITY DATE OF
PRINCIPAL AND ACCRUED INTEREST UNDER THIS LOAN (A) EACH GUARANTOR HEREBY
EXPRESSLY AGREES TO SUCH PAYMENT AND WAIVES THE PROTECTIONS OF SECTION 2954.10
OF THE CALIFORNIA CIVIL CODE WITH RESPECT THERETO AND (2) EACH GUARANTOR, BY ITS
EXECUTION HEREOF, AND EACH LENDER, BY ITS EXECUTION HEREOF AND/OR BY ITS
ACCEPTANCE OF THE BENEFITS HEREOF, HEREBY REPRESENTS, WARRANTS, ACKNOWLEDGES AND
AGREES THAT INDIVIDUAL WEIGHT HAS BEEN GIVEN TO THE CONSIDERATION IN THIS
TRANSACTION FOR THE ABOVE WAIVER AND AGREEMENT AND THAT LENDERS HAVE MADE THE
LOAN IN RELIANCE UPON SUCH AGREEMENTS AND WAIVER AND WOULD NOT HAVE MADE THE
LOAN WITHOUT SUCH AGREEMENTS AND WAIVER.
-----------------------
INITIALS OF UNDERSIGNED
In Witness Whereof, the undersigned has executed this Joinder this
___ day of _________, 200_.
------------------------------
By:
---------------------------
Title:
------------------------
