Exhibit 10
FBR Letter Agreement
Friedman, Billings, Xxxxxx & Co., Inc.
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000
June 30, 1999
Boss Investment LLC
c/o Apollo Management, L.P.
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Reference is made to the Underwriting Agreement (the "Underwriting
Agreement") dated November 25, 1997, between Friedman, Billings, Xxxxxx & Co.,
Inc. as Representative of the Several Underwriters and Consolidated Capital
Corporation (currently known as Building One Services Corporation) a Delaware
Corporation., (the "Company").
1. FBR hereby waives its right under Section 5(q) of the Underwriting
Agreement to have the Company use its best efforts to cause the election of two
FBR-designees to the board of directors of the Company (the "Board"). All
provisions of the Underwriting Agreement relating to the obligation of the
Company to cause the election of two FBR designees to the Board shall be of no
further force or effect. Additionally, one of the current FBR Board designees,
W. Xxxxxxx Xxxxxx, has resigned as a member of the Board (and all committees
thereof), effective as of the date hereof. Such resignation is attached hereto
as Exhibit A. In addition, FBR hereby waives the obligation of the Company
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under Section 5(r) of the Underwriting Agreement to use its best efforts to
maintain a director and officer insurance policy substantially in the form that
was in effect on the Firm Closing Date (as defined in the Underwriting
Agreement) with respect to matters occurring after the date hereof; provided
that, nothing herein shall limit or eliminate any existing indemnity or
insurance coverage for the Board's members for matters occurring before the date
hereof. FBR shall no longer have any right to enforce this covenant. The parties
hereto intend that the Company shall be a third party beneficiary of this Letter
Agreement.
2. FBR and Boss Investment hereby agree that this Letter Agreement
shall be governed in accordance with the laws of the State of New York and the
exclusive jurisdiction for
enforcing this Letter Agreement shall be the state courts and the federal courts
of the United States located in the City of New York. This Letter Agreement may
be executed by the parties in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when two or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
3. FBR represents and warrants that it has all requisite power and
authority to execute, deliver and perform its obligations under this Letter
Agreement and to consummate the transactions contemplated hereby. FBR's
execution and delivery of this Letter Agreement and the performance by FBR of
its obligations hereunder have been duly and validly authorized by all requisite
action on the part of FBR. This Letter Agreement has been duly executed and
delivered by FBR and constitutes a valid and binding obligation of FBR
enforceable against FBR in accordance with its terms
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If the foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon this
letter shall constitute an agreement binding FBR and Boss Investment.
Very truly yours,
FRIEDMAN, BILLINGS, XXXXXX
& CO., INC.
By: _____________________________
Name:
Title:
Accepted and agreed as of
the date first written above:
BOSS INVESTMENT LLC
By: ____________________________
Name:
Title:
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