LOAN MODIFICATION AGREEMENT
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THIS LOAN MODIFICATION AGREEMENT (the "Agreement") is made and entered
into as of October 27, 1997 by and among WESTAR FINANCIAL SERVICES
INCORPORATED, a Washington corporation ("Westar"), XXXXXX X. XXXXXXXXXXX, XX.
("Xxxxxxxxxxx") and BANK ONE, NA, a national banking association formerly
named Bank One, Columbus, NA (the "Lender").
RECITALS
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The following recitals are representations with respect to certain
factual matters that form the basis of this Agreement and are an integral part
of this Agreement.
A. The Lender loaned to Westar the sum of $750,000 (the "Loan") pursuant
to the terms and conditions of a certain Loan Agreement dated as of August 13,
1997 by and between Westar and the Lender (the "Loan Agreement");
B. To evidence the Loan, Westar executed a certain Promissory Note dated
August 13, 1997 (the "Note"), whereby Westar promised to pay the outstanding
principal balance of the Loan, together with interest as set forth in the
Note, on or before October 27, 1997;
C. To secure the Loan Agreement and the Note, the Lender and Westar
entered into a certain Security Agreement dated as of August 13, 1997 (the
"Security Agreement");
D. In consideration of the Lender making the Loan to Westar, Xxxxxxxxxxx
(the "Indemnitor") severally, agreed by a certain Validity Agreement dated as
of August 13, 1997 to indemnify the Lender as set forth therein (the "Validity
Agreement");
E. In further consideration of the Lender making the Loan to Westar,
the Lender and Westar entered into a certain Agreement with Respect to
Prevention and Resolution of Disputes dated as of August 13, 1997 (the
"Dispute Resolution Agreement");
F. Lender is still the holder and beneficiary of the Loan Agreement,
Note, Security Agreement, Validity Agreement, Dispute Resolution Agreement and
certain other agreements, documents and instruments related thereto
(collectively, the "Loan Documents"); and
G. Westar, the Lender and the Indemnitor desire to amend the Loan
Documents to extend the maturity date of the Note from October 27, 1997 to
March 15, 1998 and to change the interest rate thereunder from and after
October 31, 1997 to twenty percent (20%) per annum.
AGREEMENT
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NOW, THEREFORE, in consideration of the agreement and undertakings of the
parties to amend the Loan Documents, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. All terms and conditions of the Loan Documents shall remain in full
force and effect without change, except that, in order to reflect the
extension of the maturity date of the Note to March 15, 1998 and the increase
of the interest rate thereunder from and after October 31, 1997 to twenty
percent (20%) per annum, Section 1 of the Note is hereby deleted in its
entirety and replaced with the following:
1. Payments of Principal and Interest.
The total principal sum and interest hereunder shall be due
and payable and shall be paid by Westar to the Lender in one lump
sum payment on or before March 15, 1998.
The unpaid principal balance of this Note shall bear
interest as follows:
(a) from the date of the initial disbursement to and
including October 31, 1997, at a fluctuating rate per annum equal
to three percent (3.0%) above the LIBOR Rate (defined below);
and
(b) from and after November 1, 1997 to and including the
maturity date, at a rate of twenty percent (20%) per annum.
As used herein, "LIBOR Rate" shall mean the interest rate
at which deposits in immediately available funds in U.S. dollars
are offered by prime banks in the interbank market for a thirty (30)
day period as published in the Wall Street Journal. The initial
LIBOR Rate shall be the LIBOR Rate in effect as of the date of
disbursement of the loan proceeds by the Lender and thereafter
shall be the LIBOR Rate in effect as of the first Business Day of
each month (the "Interest Determination Date") and such LIBOR
Rate shall be effective until the next succeeding Interest
Determination Date. Any change in the LIBOR Rate shall be
effective immediately upon and after the related Interest
Determination Date
All interest payable in accordance with this Note shall be
calculated on the basis of a 360-day year for the actual number of
days principal is outstanding."
2. Westar covenants that it will (i) pay the balance of the principal,
together with the interest from the dates of disbursement thereof, as
specified in the Loan Documents, as amended hereby, and (ii) perform and
observe all covenants, agreements, stipulations and conditions on its part to
be performed under the Loan Documents.
3. Except as specifically modified herein, the Loan Documents shall
remain in full force and effect in all respects according to their original
terms, covenants and conditions as security for the unpaid balance of the
indebtedness and interest thereon evidenced by the Loan Agreement and the
Note, as if the unpaid balance of the principal, with the interest accrued
thereon, had originally been payable as provided for herein. Except as
specifically set forth herein, nothing in this Agreement shall affect or
impair any rights and powers which the Lender may have thereunder.
4. Each of the parties hereto consents to the provisions of this
Agreement and represents and warrants to the Lender that as of the date hereof
the Loan Documents to which such party remain in full force and effect and are
enforceable in accordance with their respective terms, as amended hereby.
5. This Agreement may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
6. This Agreement is binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and assigns; provided,
however, that Westar and the Indemnitors may not assign or transfer their
respective rights or duties under this Agreement or the Loan Documents without
the prior written consent of the Lender.
IN WITNESS THEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BANK ONE, NA WESTAR FINANCIAL SERVICES
INCORPORATED, a Washington
corporation
By:__________________________ By:___________________________
Xxxxxx X. Xxxx, Xx., Xxxxxx X. Xxxxxxxxxxx,
Vice President President
_____________________________
XXXXXX X. XXXXXXXXXXX,
Individually
