Contract
|
[logo]
|
Exhibit
10.38
|
This
agreement is dated as of April 16, 2009 (the "Agreement Date"), by and
between COLONIAL FULL SERVICE CAR WASH, INC. (the "Borrower") and JPMorgan Chase
Bank, N.A. (together with its successors and assigns, the "Bank"). The provisions of this
agreement are effective on the date that this agreement has been executed by all
of the signers and delivered to the Bank (the "Effective Date").
WHEREAS, the Borrower executed
PROMISSORY NOTE dated as of October 16, 1996 in the original principal amount of
Two Million Two Hundred Sixteen Thousand and 00/100 Dollars ($2,216,000.00), as
the maturity was extended to August 20, 2009 pursuant to a Note Modification
Agreement dated as of August 5, 2004 (as same may have been amended or modified
from time to time, the "Note") as evidence of an
extension of credit from the Bank to the Borrower, which Note has at all times
been, and is now, continuously and without interruption outstanding in favor of
the Bank; and,
WHEREAS, the Borrower has
requested and the Bank has agreed that the Note be modified to the limited
extent as hereinafter set forth in this agreement;
NOW THEREFORE, in mutual
consideration of the agreements contained herein and for other good and valuable
consideration, the parties agree as follows:
1. ACCURACY OF RECITALS. The
Borrower acknowledges the accuracy of the Recitals stated above.
2. DEFINITIONS. Capitalized terms
used in this agreement shall have the same meanings as in the Note, unless
otherwise defined in this agreement.
3. MODIFICATION OF
NOTE.
3.1 The
“Maturity Date” of the Note is hereby extended from August 20, 2009 to April 20,
2011.
3.2 From
and after the Effective Date, the Note shall be payable in consecutive monthly
installments of principal each in the amount of $15,895.35, plus accrued
interest, commencing on May 20, 2009 and continuing on the same day of each
month thereafter until April 20, 2011, at which time the entire balance of
unpaid principal, accrued interest and all other amounts payable under the Note
shall be due and payable immediately. The Note may be prepaid at any
time without premium or penalty.
3.3 Commencing
on the Effective Date, the Note shall bear interest at the CB Floating Rate plus
..75% (the “Applicable
Margin”).
3.4 As
used in this Agreement, the following terms shall have the indicated
meanings:
"Adjusted One Month LIBOR Rate"
means, for any day, the sum of (i) 2.50% per annum plus (ii) the quotient of (a)
the interest rate determined by Bank by reference to the Page to be the rate at
approximately 11:00 a.m. London time, on such date or, if such date is not a
Business Day, on the immediately preceding Business Day for dollar deposits with
a maturity equal to one (1) month, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to dollar deposits in the London
interbank market with a maturity equal to one (1) month.
"Business Day" means (i) with
respect to the Adjusted One Month LIBOR Rate, a day (other than a Saturday or
Sunday) on which banks generally are open in Texas and/or New York for the
conduct of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market
and (ii) for all other purposes, a day other than
a Saturday, Sunday or any other day on which national banking associations are
authorized to be closed.
"CB Floating Rate" means the
Prime Rate; provided
that the CB Floating Rate shall, on any day, not be less than the Adjusted One
Month LIBOR Rate. The CB Floating Rate is a variable rate and any
change in the CB Floating Rate due to any change in the Prime Rate or the
Adjusted One Month LIBOR Rate is effective from and including the effective date
of such change in the Prime Rate or the Adjusted One Month LIBOR Rate,
respectively.
"Page" means Reuters Screen
LIBOR01, formerly known as Page 3750 of the Moneyline Telerate Service (together
with any successor or substitute, the "Service") or any successor or
substitute page of the Service providing rate quotations comparable to those
currently provided on such page of the Service, as determined by the Bank from
time to time for purposes of providing quotations of interest rates applicable
to dollar deposits in the London interbank market.
"Prime Rate" means the rate of
interest per annum publicly announced from time to time by JPMorgan Chase Bank,
N.A. as its prime rate; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective. The
Prime Rate is a reference rate and is not necessarily the lowest
rate.
3.5 If
the Bank determines on any day that quotations of interest rates for the
relevant deposits referred to in the definition of Adjusted One Month LIBOR Rate
are not being provided for purposes of determining the interest rate on any
advance on any day, then each advance evidenced by the Note shall bear interest
at the Prime Rate plus the Applicable Margin until the Bank determines that
quotations of interest rates for the relevant deposits referred to in the
definition of Adjusted One Month LIBOR Rate are being provided.
3.6 As
of the Effective Date, the late charge provision in the Note is deleted and the
following is inserted in lieu thereof:
Late Fee. Any principal
or interest which is not paid within 10 days after its due date (whether as
stated, by acceleration or otherwise) shall be subject to a late payment charge
of five percent (5.00%) of the total payment due, in addition to the payment of
interest, up to the maximum amount of One Thousand Five Hundred and 00/100
Dollars ($1,500.00) per late charge. Borrower agrees to pay and stipulates that
five percent (5.00%) of the total payment due is a reasonable amount for a late
payment charge. Borrower shall pay the late payment charge upon demand by Bank
or, if billed, within the time specified.
From and after the Effective Date, the
following provision is hereby added to the Note:
Authorization for Direct Payments
(ACH Debits). To effectuate any payment due under this Note or under any
other Loan Documents, the Borrower hereby authorizes Bank to initiate debit
entries to Account Number ____________________ at Bank and to debit the same to
such account. This authorization to initiate debit entries shall remain in full
force and effect until Bank has received written notification of its termination
in such time and in such manner as to afford Bank a reasonable opportunity to
act on it. Borrower represents that Borrower is and will be the owner of all
funds in such account. Borrower acknowledges (1) that such debit entries may
cause an overdraft of such account which may result in Bank’s refusal to honor
items drawn on such account until adequate deposits are made to such account;
(2) that Bank is under no duty or obligation to initiate any debit entry for any
purpose; and (3) that if a debit is not made because the above-referenced
account does not have a sufficient available balance, or otherwise, the payment
may be late or past due.
3.7 The
term “Loan Agreement” as defined in the Note is hereby amended to mean that
certain Credit Agreement dated as of November 1, 2006 between the Bank and the
Borrower, together with all renewals, extensions, amendments and other
modifications thereto and all substitutions and replacements
thereof.
3.8 Each
of the Related Documents is modified to provide that it shall be a default or an
event of default thereunder if the Borrower shall fail to comply with any of the
covenants of the Borrower herein or if any representation or warranty by the
Borrower herein or by any guarantor in any Related Documents is materially
incomplete, incorrect, or misleading as of the date hereof. As used in this
agreement, the "Related
Documents" shall include the Note and all applications for letters of
credit, loan agreements, credit agreements, reimbursement agreements, security
agreements, mortgages, deeds of trust, pledge agreements, assignments,
guaranties, or any other instrument or document executed in connection with the
Note or in connection with any other obligations of the Borrower to the
Bank.
3.9 Each
reference in the Related Documents to any of the Related Documents shall be a
reference to such document as modified by this agreement.
4. RATIFICATION OF RELATED DOCUMENTS AND
COLLATERAL. The Related Documents are ratified and reaffirmed by the
Borrower and shall remain in full force and effect as they may be modified by
this agreement. All property described as security in the Related Documents
shall remain as security for the Note, as modified by this agreement, and the
Liabilities under the other Related Documents.
5. BORROWER REPRESENTATIONS AND
WARRANTIES. The Borrower represents and warrants to the Bank that each of
the representations and warranties made in the Note and the other Related
Documents and each of the following representations and warranties are and will
remain, true and correct until the later of maturity or the date on which all
Liabilities evidenced by the Note are paid in full:
2
5.1 No
default, event of default or event that would constitute a default or event of
default but for the giving of notice, the lapse of time or both, has occurred
and is continuing under any provision of the Note, as modified by this
agreement, or any other Related Document.
5.2 No
event has occurred which may in any one case or in the aggregate materially and
adversely affect the financial condition, properties, business, affairs,
prospects or operations of the Borrower or any guarantor or any subsidiary of
the Borrower.
5.3 The
Borrower has no defenses or counterclaims, offsets or adverse claims, demands or
actions of any kind, personal or otherwise, that it could assert with respect to
the Note or any other Liabilities.
5.4 The
Note, as modified by this agreement, and the other Related Documents are the
legal, valid, and binding obligations of the Borrower and the other parties,
enforceable against the Borrower and other parties in accordance with their
terms, except as may be limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
5.5 The
Borrower, other than any Borrower who is a natural person, is validly existing
under the laws of the State of its formation or organization. The Borrower has
the requisite power and authority to execute and deliver this agreement and to
perform the obligations described in the Related Documents as modified herein.
The execution and delivery of this agreement and the performance of the
obligations described in the Related Documents as modified herein have been duly
authorized by all requisite action by or on behalf of the Borrower. This
agreement has been duly executed and delivered by or on behalf of the
Borrower.
6. BORROWER COVENANTS. The
Borrower covenants with the Bank:
6.1 The
Borrower shall execute, deliver, and provide to the Bank such additional
agreements, documents, and instruments as reasonably required by the Bank to
effectuate the intent of this agreement.
6.2 The
Borrower fully, finally, and forever releases and discharges the Bank, its
successors, and assigns and their respective directors, officers, employees,
agents, and representatives (each a "Bank Party") from any and all
causes of action, claims, debts, demands, and liabilities, of whatever kind or
nature, in law or equity, of the Borrower, whether now known or unknown to the
Borrower, (i) in respect of the loan evidenced by the Note and the Related
Documents, or of the actions or omissions of any Bank Party in any manner
related to the loan evidenced by the Note or the Related Documents and (ii)
arising from events occurring prior to the date of this agreement ("Claims"); provided, however,
that the foregoing RELEASE
SHALL INCLUDE ALL CLAIMS ARISING OUT OF THE NEGLIGENCE OF ANY BANK PARTY,
but not the gross negligence or willful misconduct of any Bank
Party.
6.3 To
the extent not prohibited by applicable law, the Borrower shall pay to the
Bank:
6.3.1 All
the internal and external costs and expenses incurred (or charged by internal
allocation) by the Bank in connection with this agreement (including, without
limitation, inside and outside attorneys, appraisal, appraisal review,
processing, title, filing, and recording costs, expenses, and
fees).
7. EXECUTION AND DELIVERY OF AGREEMENT
BY THE BANK. The Bank shall not be bound by this agreement until (i) the
Bank has executed this agreement and (ii) the Borrower performed all of the
obligations of the Borrower under this agreement to be performed
contemporaneously with the execution and delivery of this
agreement.
8. INTEGRATION, ENTIRE AGREEMENT,
CHANGE, DISCHARGE, TERMINATION, OR WAIVER. The Note, as modified by this
agreement, and the other Related Documents contain the complete understanding
and agreement of the Borrower and the Bank in respect of any Liabilities
evidenced by the Note and supersede all prior understandings, and negotiations.
No provision of the Note, as modified by this agreement, or any other Related
Documents may be changed, discharged, supplemented, terminated, or waived except
in a writing signed by the party against whom it is being enforced.
9. GOVERNING LAW AND VENUE. This
agreement shall be governed by and construed in accordance with the laws of the
State of Texas (without giving effect to its laws of conflicts). The Borrower
agrees that any legal action or proceeding with respect to any of its
obligations under the Note or this agreement may be brought by the Bank in any
state or federal court located in the State of Texas, as the Bank in its sole
discretion may elect. By the execution and delivery of this agreement, the
Borrower submits to and accepts, for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of those courts.
The Borrower waives any claim that the State of Texas is not a convenient forum
or the proper venue for any such suit, action or proceeding. This agreement
binds the Borrower and its successors, and benefits the Bank, its successors and
assigns. The Borrower shall not, however, have the right to assign the
Borrower's rights under this agreement or any interest therein, without the
prior written consent of the Bank.
3
10. COUNTERPART EXECUTION. This
agreement may be executed in multiple counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts, taken
together, shall constitute one and the same agreement.
11. NOT A NOVATION. This agreement
is a modification only and not a novation. In addition to all amounts hereafter
due under the Note, as modified by this agreement, and the other Related
Documents, all accrued interest evidenced by the Note being modified by this
agreement and all accrued amounts due and payable under the Related Documents
shall continue to be due and payable until paid. Except for the modification(s)
set forth in this agreement, the Note, the other Related Documents and all the
terms and conditions thereof, shall be and remain in full force and effect with
the changes herein deemed to be incorporated therein. This agreement is to be
considered attached to the Note and made a part thereof. This agreement shall
not release or affect the liability of any guarantor, surety or endorser of the
Note or release any owner of collateral securing the Note. The validity,
priority and enforceability of the Note shall not be impaired hereby. References
to the Related Documents and to other agreements shall not affect or impair the
absolute and unconditional obligation of the Borrower to pay the principal and
interest on the Note when due. The Bank reserves all rights against all parties
to the Note and the other Related Documents.
THIS
AGREEMENT AND THE OTHER RELATED DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
|
Borrower:
|
||||
|
Address:
|
000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
XX 00000
|
COLONIAL
FULL SERVICE CAR WASH, INC.
|
||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx
|
|||
|
Xxxxxxx X. Xxxxxxxx
|
Treasurer
|
|||
|
Printed
Name
|
Title
|
|||
|
Date
Signed:
|
May 8, 2009
|
BANK’S
ACCEPTANCE
The
foregoing agreement is hereby agreed to and acknowledged.
|
Bank:
|
|||
|
JPMorgan
Chase Bank, N.A.
|
|||
|
By:
|
/s/ Xxxxx Xxxx
|
||
|
Xxxxx X. Xxxx
|
Senior Vice President
|
||
|
Printed
Name
|
Title
|
||
|
Date
Signed:
|
May 8,
2009
|
4
