Exhibit 10.35
Loan Modification
Agreement
$250,000.00 Olympia, Washington
March 10, 2000
THIS LOAN MODIFICATION AGREEMENT ("the Agreement") is made and entered
into as of March 10, 2000 by and among Westar Financial Services Incorporated, a
Washington Corporation ("Westar") and Xxxxxxx X. Xxxx, the Lender.
RECITALS
FOR VALUE RECEIVED, the undersigned, WESTAR FINANCIAL SERVICES
INCORPORATED, a Washington corporation (the "Company"), promises to pay to the
order of XXXXXXX X. XXXX (the "Lender"), at its principal place of business at
00000 Xxx-Xxxxxxxxxxx Xxxx, X.X. Xxx 000, Xxxxxxxxxxx, Xxxxxxxxxx, 00000-0000,
or to the holder hereof at such address as the holder may designate by written
notice, the principal sum of Two Hundred Fifty Thousand Dollars ($250,000.00),
together with interest on the unpaid principal balance hereof from the date of
disbursement by the Lender at the rate and in the manner hereinafter set forth.
1. Payments of Principal and Interest. The total principal sum
and interest hereunder shall be due and payable and shall be paid by the Company
to the Lender in one lump sum payment on the earlier of (i) December 1, 1999 or
(ii) receipt by the Company of not less than Five Million Dollars
($5,000,000.00) in proceeds from one or more closings of its current offering of
Units, consisting of senior subordinated notes and warrants or any other similar
financing or financing involving equity securities. This Note shall bear
interest on the unpaid principal balance at a rate per annum equal to nine
percent (9%). All interest payable in accordance with this Note shall be
calculated on the basis of a 365 day year for the actual number of days
principal is outstanding. Payment shall be made by wire transfer of immediately
available funds as specified by Lender.
2. Pre-Payments. The indebtedness evidenced or created by this
Note may at any time prior to maturity be prepaid in full or in part without any
premium or penalty.
3. Collateral. This Note is secured by a lien on and security
interest in certain assets of the Company pursuant to a Security Agreement of
even date herewith between the Lender and the Company (the "Security
Agreement").
4. Remedies.
(a) The failure of the Lender to exercise any option upon
any default shall not constitute a waiver of the right to exercise such option
in the event of any continuing or subsequent default. The Company hereby agrees
that the maturity of all or any part of the loan may be postponed or extended
and that any covenants and conditions contained in this Note, or the Security
Agreement or in any instrument given as security for the Indebtedness evidenced
or created hereby may be waived or modified without prejudice to the liability
of the Company on said Note or instrument.
(b) Presentment for payment, notice or dishonor, protest,
notice of protest and diligence in bringing suit against the Company or any
guarantor of the Company's obligations are hereby severally waived by the
Company.
5. Maximum Interest. Nothing herein contained, nor in any
instrument or transaction relating hereto, shall be construed as to require the
Company, or any person liable for the payment of the loan made pursuant to this
Note, to pay interest in an amount or at a rate greater than the highest rate
permissible under applicable law. Should any interest or other charges paid by
the Company or any parties liable for the payment of the loan made pursuant to
this Note, result in the computation of earning of interest in excess of the
highest rate permissible under applicable law, then any and all such excess
shall be and the same is hereby waived by Lender, and all such excess shall be
automatically credited against and in reduction of the principal balance, and
any portion of said excess which exceeds the principal balance shall be paid by
the Lender to the Company or any parties liable for the payment of the loan made
pursuant to this Note as their respective interests appear, it being the intent
of the parties hereto that under no
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circumstances shall the Company or any parties liable for the payment of the
loan hereunder be required to pay interest in excess of the highest rate
permissible under applicable law.
6. Notices. Except for any notice required under applicable law
to be given in another manner, (a) any notice to the Company provided for
hereunder shall be delivered by mailing such notice by certified mail or
registered mail, return receipt requested, or overnight courier addressed to the
Company at its address as shown on Lender's records or at such address as the
Company may designate by notice to the Lender as provided herein, and (b) any
notice to the Lender shall be delivered by certified or registered mail, return
receipt requested, or by overnight courier to the Lender's address set forth
above, or to such other address as the Lender may designate by notice to the
Company as provided herein. Any notice provided for hereunder shall be deemed to
have been delivered to the Company or the Lender three days after the same has
been deposited with the United States Postal Service or overnight courier in the
above manner. Actual notice and receipt of any written notice shall constitute
notice in all events. Payment, however, shall be deemed received only upon
actual receipt.
- Governing Law. This Note shall be governed and construed in accordance
with the laws of the State of Washington.
LOAN MODIFICATION AGREEMENT
Westar, the Borrower and Xxxxxxx X. Xxxx, the Lender desire to amend
the original loan documents to extend the maturity date from March 10, 2000 to
April 30, 2001.
Lender WESTAR FINANCIAL SERVICES
INCORPORATED
By: _________________________ By: ____________________
Xxxxxxx X. Xxxx X. X. Xxxxxxxxxxx, Xx.
President
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