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EXHIBIT 10.18
August 22, 1996
Xxxxxxxx and Xxxxxxxx, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Re: Credit Agreement (as the same may be amended, the "CREDIT
AGREEMENT") dated January 31, 1996 among Xxxxxxxx and
Xxxxxxxx, Inc., each of the banks or other lending
institutions which are or which may from time to time become a
party thereto (individually a "BANK" and collectively "THE
BANKS") and The First National Bank of Boston, individually as
a Bank and as agent for itself and the other Banks (the
"AGENT"). All capitalized terms used herein, unless otherwise
defined herein, shall have the same meaning as in the Credit
Agreement.
Ladies and Gentlemen:
The Borrower has requested that clause (i) of Section 10.5 of the
Credit Agreement be amended in its entirety to read as follows (the
"AMENDMENT"):
(i) (1) notes received in the ordinary course of Borrower's or
a Subsidiary's business from customers or franchisees in connection
with the settlement or satisfaction of the obligations of customers or
franchisees; provided that the outstanding principal amount of such
notes shall at no time exceed One Million Dollars ($1,000,000) in the
aggregate; and
(2) loans, advances or investments other than those described
in clauses (A) through (H) of this SECTION 10.5 and those described in
clause (1) of this clause (I) if the aggregate principal amount of
such loans and advances outstanding plus the aggregate acquisition
cost of the outstanding investments never exceeds One Hundred Thousand
Dollars ($100,000.00).
Each of the undersigned Banks and the Agent hereby agree to the
Amendment.
To induce the Banks and the Agent to agree to the Amendment, Borrower
and each of the Obligated Parties (by their execution below) hereby agree that:
1. Except as specifically set forth herein, all terms and
provisions of the Loan Documents, all rights of the Agent and
the Banks thereunder and all obligations of the Borrower and
each of the Obligated Parties thereunder shall remain in full
force and effect and are ratified and confirmed in all
respects.
2. The terms and conditions set forth in this letter shall modify
and supersede all inconsistent terms and provisions set forth
in the Credit Agreement.
3. The Credit Agreement, to the extent modified hereby, and the
other Loan Documents, shall continue to be legal, valid,
binding and enforceable in accordance with their respective
terms.
4. Each reference to the Credit Agreement in any Loan Documents
shall include a reference to the Credit Agreement as modified
hereby.
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Xxxxxxxx and Xxxxxxxx, Inc.
August 22, 1996
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Borrower represents and warrants to Agent and each Bank that the
following statements are true, correct and complete: (a) after giving effect to
this letter, no Default or Events of Default has occurred and is continuing;
(b) after giving effect to this letter, the representations and warranties set
forth in the Loan Documents are true and correct in all material respects on
and as of the date hereof with the same effect as though made on and as of such
date except with respect to any representations and warranties limited by their
terms to a specific date; and (c) the execution, delivery and performance of
this letter has been duly authorized by all necessary action on the part of
Borrower and the Obligated Parties and does not and will not: (1) violate any
provision of law applicable to Borrower or any Obligated Party, the certificate
of incorporation or bylaws of Borrower or any Obligated Party or any order,
judgment, or decree of any court or agency of government binding upon Borrower
or any Obligated Party; (2) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any material
contractual obligation of Borrower or any Obligated Party; (3) result in or
require the creation or imposition of any material Lien upon any of the
properties or assets of Borrower or any Obligated Party; or (4) require any
approval or consent of any Person under any material contractual obligation of
Borrower or any Obligated Party.
THIS LETTER EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS WHETHER WRITTEN OR ORAL RELATING TO THE
SUBJECT MATTER HEREOF, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. This letter shall be governed by and construed in accordance
with the internal laws of the State of Texas without regard to conflicts of law
principles. This letter may be executed in one or more counterparts and on
telecopy counterparts each of which shall be deemed an original but all of
which together shall constitute one and the same agreement.
Very truly yours,
THE FIRST NATIONAL BANK OF BOSTON,
individually as a Bank and as the Agent
By: /s/ XXXXXX ATLUETER
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Name: Xxxxxx Atlueter
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Title: Vice President
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BANK ONE, TEXAS, N.A.
By: /s/ X. XXXXXX
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X. Xxxxxx
Vice President
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Vice President
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Xxxxxxxx and Xxxxxxxx, Inc.
August 22, 1996
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Accepted and Agreed to as of August 19, 1996
XXXXXXXX AND XXXXXXXX, INC.
By: /s/ J. XXXXXXX XXXXX
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J. Xxxxxxx Xxxxx
Senior Vice President
ADVANCE PROCESSING SYSTEMS, INC.
By: /s/ J. XXXXXXX XXXXX
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J. Xxxxxxx Xxxxx
President
PLANT MAINTENANCE, INC. OF CALIFORNIA
By: /s/ J. XXXXXXX XXXXX
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J. Xxxxxxx Xxxxx
Senior Vice President
/s/ XXXXXX X. XXXXXXXX, XX.
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Xxxxxx X. Xxxxxxxx, Xx., individually
/s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, individually
ARIMATHEA ASSOCIATES, LTD.
By: Nehemiah, Inc., its general partner
By: /s/ J. XXXXXXX XXXXX
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J. Xxxxxxx Xxxxx
Vice President and Treasurer
