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Exhibit 10.41
CONVERTIBLE PROMISSORY NOTE
$1,000,000 June 5, 2000
This Convertible Promissory Note ("Note") is being executed and delivered to &
Capital Partners, L.P. a Delaware limited partnership (hereinafter "Lender"), in
consideration for Lender's advancing funds to Westar Financial Services
Incorporated ("Borrower").
WHEREAS, Borrower is attempting to secure equity financing from several
parties through the issuance of Series C Preferred Stock in Borrower;
WHEREAS, Borrower has immediate cash needs that must be met before a
closing of the Series C Preferred Stock is possible; and
WHEREAS, Lender is willing to assist Borrower with its immediate cash
needs by loaning Borrower $1,000,000 upon the condition that such amount is
convertible into Borrower's Series C Preferred Stock upon the closing of a
transaction, the terms of which are acceptable to Lender, to sell shares of
Borrower's Series C Preferred Stock.
NOW, THEREFORE, in consideration of the premises, and in order to induce Lender
to advance funds to Borrower, the parties hereby agree as follows:
1. PRINCIPAL; INTEREST; MATURITY. For value received, Borrower hereby promises
to pay to the order of Lender the principal sum of $1,000,000 ("Principal") with
interest at a rate of nine percent (9%) per annum. The principal sum, together
with all interest accrued thereon, shall be due and payable in full by Borrower
three (3) months from the date hereof. There shall be no prepayment penalty.
2. CONVERSION. The Principal and all accrued interest thereon (the "Conversion
Amount") shall automatically and immediately convert into fully paid and
non-assessable shares of Series C Preferred Stock of the Borrower upon the
closing of a transaction, the terms of which are acceptable to Lender, to sell
shares of Company's Series C Preferred Stock. The Conversion Amount will convert
into the number of non-fractional shares equal to the quotient of A) the
Conversion Amount, divided by B) the initial purchase price per share of Series
C Preferred Stock. Borrower will pay cash to Lender for any remainder of the
Conversion Amount in lieu of issuing fractional shares. This right of conversion
is subject only upon Lender's surrender of this Convertible Promissory Note and
execution by Lender of any and all appropriate Series C Preferred Stock purchase
documents, in form satisfactory to the Company.
3. SECURITY. Borrower hereby acknowledges that this Note will be included as a
Secured Obligation under that certain Security Agreement between Lender and
Borrower dated April 15, 1997 ("Security Agreement"), with this provision
serving as written amendment to the Security Agreement for such purpose.
4. SUBORDINATION. Lender hereby acknowledges that the Security Agreement is
subordinate in rights to that certain Bank One Security Interest between Bank
One and Borrower; provided, however, that conversion of this Note into shares of
Series C Preferred Stock shall not be affected by such subordination.
5. DEMAND RIGHTS. This Note shall become due and payable immediately, without
demand or notice, upon the occurrence of any of the following:
(a) Discovery that any misrepresentation was made to Lender by or on
behalf of Borrower for the purpose of obtaining the funds advanced
hereunder;
(b) The voluntary or involuntary application for, or appointment of, a
receiver for Borrower;
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(c) The filing of a voluntary or involuntary petition by or on behalf
of Borrower under any of the provisions of the federal bankruptcy laws;
(d) The issuance of a warrant of attachment or for distraint, or of a
notice of tax lien against Borrower;
(e) The entry of a judgment against Borrower;
(f) Borrower's failure to pay, withhold, collect, or remit any tax or
tax deficiency when assessed or due;
(g) Borrower's dissolution;
(h) A bulk sale of Borrower's business assets or notice of Borrower's
intent to do so;
(i) Suspension or liquidation of Borrower's business;
(j) Failure on the part of Borrower, after demand, to furnish financial
information or to permit inspection of any books or records; or
(k) Default in payment or performance of any other obligation to
Lender, whether made directly between Borrower and Lender or made by
Borrower and acquired in any manner by Lender.
6. COLLECTION EXPENSES. Borrower agrees to pay the actual expenditures made in
any attempt to collect the amount due pursuant to this Note.
7. ATTORNEY'S FEES. Borrower agrees that if any legal action is necessary to
enforce or collect this note, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to any other relief to which the party
may be entitled.
8. CHOICE OF LAW. This Note shall be construed under the laws of the State of
California, including the Uniform Commercial Code as enacted and enforced in the
State of California.
9. WAIVERS. The undersigned waives presentment, demand for payment, notice of
dishonor, notice of protest, and protest, and all other notices or demands in
connection with the delivery, acceptance, performance, default, endorsement, or
guarantee of this interest.
IN WITNESS WHEREOF, the undersigned have caused this Note to be executed as of
the date first above written.
BORROWER:
WESTAR FINANCIAL SERVICES INCORPORATED
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By: R.W. Christensen, Jr.
Its: President
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