EXHIBIT 10.11
LOAN MODIFICATION AGREEMENT
THIS LOAN MODIFICATION AGREEMENT (the "Agreement") is made and entered
into as of July 13, 1998 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
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 April
30, 1999 and to change the interest rate thereunder from and after July 31, 1998
to twenty percent (20%) per annum if delinquent.
AGREEMENT
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 April 30, 1999 and the increase of the
interest rate thereunder from and after July 31, 1998 to twenty percent (20%)
per annum if delinquent, 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 April 30, 1999.
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 July 31, 1998 to and including the maturity
date, at a rate of twenty percent (20%) per annum if delinquent.
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:
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Xxxxxx X. Xxxx, Xx., Xxxxxx X. Xxxxxxxxxxx,
Vice President President
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Xxxxxx X. Xxxxxxxxxxx,
Individually
