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Exhibit 10.38
Note Modification
Agreement
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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.
3.1 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 accoun
