EXHIBIT 10.16
SEVENTH AMENDMENT TO
LOAN AGREEMENT
THIS SEVENTH AMENDMENT TO LOAN AGREEMENT ("Seventh Amendment"), made
and entered into as of the 30th day of June, 2002, by and between MERCURY WASTE
SOLUTIONS, INC., a Minnesota corporation ("Borrower") and BANKERS AMERICAN
CAPITAL CORPORATION, a Minnesota corporation ("Lender");
RECITALS
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A. Borrower and Lender are parties to that certain Loan Agreement dated
as of May 8, 1998, as amended by that certain First Amendment dated May 7, 1999,
that certain Second Amendment dated September 30, 1999, that certain Third
Amendment dated March 8, 2000, that certain Fourth Amendment dated August 14,
2000, that certain Fifth Amendment dated December 31, 2000 and that certain
Sixth Amendment dated October 1, 2001 (as amended, the "Loan Agreement");
B. Borrower has requested that Lender extend the Maturity Date of the
Revolving Credit Commitment and the Lender is willing to do so; and
C. The parties hereto desire to amend the terms of the Loan Agreement
upon the terms and conditions hereinafter set forth.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for one dollar and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby amend the Loan Agreement as follows:
1. Capitalized Terms. All capitalized terms not defined herein shall
have the meanings assigned such terms in the Loan Agreement, unless otherwise
defined herein. In addition, the following amended and new defined term shall be
made a part of (and replace any such previous defined terms) the Loan Agreement:
"Maturity Date" means June 30, 2004, with respect to the
revolving Note.
"Revolving Note" means that certain Revolving Credit
Promissory Note dated as of June 30, 2002, in the principal
amount of $1,500,000, made payable by Borrower to the order of
Lender as the same may be amended, executed, renewed or
replaced from time to time.
2. Covenants. Borrower reaffirms as of the date of this Seventh
Amendment and covenants with the Lender all of the Covenants contained in
Articles V and VI of the Agreement.
3. Conditions Precedent. Prior to the effectiveness of this Seventh
Amendment, the Borrower shall provide to the Lender as conditions precedent, the
following:
a. Original counterpart of this Seventh Amendment duly
executed by the Borrower;
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b. Original Revolving Note duly executed by the Borrower;
c. Payment of all costs and expenses incurred by the Lender in
connection with this Seventh Amendment, including without
limitation, all legal fees and out-of-pocket expenses of
Lender's counsel;
d. Current resolutions of Borrower's board of directors
authorizing the Seventh Amendment and the new Revolving
Note;
e. Borrower updates to Exhibit A (Litigation), Schedule 6.6(c)
(Indebtedness) and Schedule 6.7(b) (Liens) to the original
Loan Agreement effective as of the date of this Seventh
Amendment;
f. Consent of Guarantor in form and substance acceptable to
Lender executed by MWSNY; and
g. Reaffirmation of Security Agreement in form and substance
acceptable to Lender executed by MWSNY and MWSI.
4. References. Any references in any document to the Loan Agreement
including, but not limited to, the Notes and other Loan Documents, are hereby
amended to refer to the Loan Agreement as amended by this Seventh Amendment.
5. Representations and Warranties. Borrower reaffirms and confirms all
of the representations, covenants and warranties contained in Articles IV and V
of the Loan Agreement as of the date of this Seventh Amendment. Borrower further
represents and warrants that the execution, delivery and performance of this
Seventh Amendment and the documents referenced herein are within the corporate
powers of Borrower and have been duly authorized by all necessary corporate
action.
6. Reaffirmation of Security Agreement. Borrower hereby acknowledges
and agrees that all of the obligations of Borrower under the Loan Agreement, as
amended by this Seventh Amendment, is secured by that certain Security Agreement
executed by Borrower in favor of Lender dated as of May 8, 1998.
7. Acknowledgments. The Borrower acknowledges that it has been advised
by the counsel of its choice in the negotiation, execution and delivery of this
Seventh Amendment, that the Lender has no fiduciary relationship to or joint
venture with the Borrower, the relationship being solely that of borrower and
lender, and that the Lender does not undertake any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the business or operations of the Borrower which shall rely entirely on
its own judgment.
8. Costs and Expenses. Borrower agrees to pay all costs and expenses
incurred by Lender in connection with the preparation of this Seventh Amendment,
including, but not limited to, title insurance premiums and expenses, recording
fees, and the fees and expenses of legal counsel.
9. Entire Agreement. This Seventh Amendment and the Loan Agreement, and
all documents referenced therein or thereby, embody the entire agreement between
the parties and supersede all prior agreements and understandings between the
parties hereto.
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10. Full Force and Effect. Except as amended hereby, the provisions of
the Loan Agreement shall remain unmodified and in full force and effect.
11. Counterparts. This Seventh Amendment may be executed in any number
of counterparts, each of which shall be an original and all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Seventh Amendment to
be executed as of the day and year first above written.
BORROWER: MERCURY WASTE SOLUTIONS, INC.,
A MINNESOTA CORPORATION
BY \S\ XXXX X. XXXXXXXX
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ITS CFO
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LENDER: BANKERS AMERICAN CAPITAL
CORPORATION, A MINNESOTA CORPORATION
BY XXXX X. XXXXXXX
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ITS PRESIDENT
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CONSENT OF GUARANTOR
The undersigned, as guarantor of all obligations of Mercury Waste
Solutions, Inc. (the "Borrower") to Bankers American Capital Corporation
("Lender") pursuant to that certain Guaranty dated May 8, 1998 executed by the
undersigned in favor of Lender, as the same may be amended from time to time
(the "Guaranty"), hereby consents to the terms of the above Seventh Amendment,
and agrees that the undersigned remains obligated to the Lender for the payment
of the indebtedness of the Borrower incurred pursuant to said agreement, as
amended, including without limitation, the indebtedness evidenced by the
Revolving Note, as defined therein.
Dated: June 30, 2002 MWS NEW YORK, INC.,
A MINNESOTA CORPORATION
BY XXXX X. XXXXXXXX
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ITS CFO
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REAFFIRMATION OF SECURITY AGREEMENT
The undersigned, as guarantor of all obligations of Mercury Waste
Solutions, Inc. (the "Borrower") to Bankers American Capital Corporation
("Lender") pursuant to that certain Guaranty dated May 8, 1998 executed by the
undersigned in favor of Lender, as the same may be amended from time to time
(the "Guaranty"), hereby acknowledges and agrees that all of the obligations of
the undersigned under the Loan Agreement, as amended by this Seventh Amendment,
and the Guaranty is secured by that certain Security Agreement executed by the
undersigned in favor of Lender dated as of May 8, 1998.
Dated: June 30, 2002 MWS NEW YORK, INC.,
A MINNESOTA CORPORATION
BY XXXX X. XXXXXXXX
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ITS CFO
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REAFFIRMATION OF SECURITY AGREEMENT
The undersigned, as guarantor of all obligations of Mercury Waste
Solutions, Inc. (the "Borrower") to Bankers American Capital Corporation
("Lender") pursuant to that certain Guaranty dated October 1, 2001 executed by
the undersigned in favor of Lender, as the same may be amended from time to time
(the "Guaranty"), hereby acknowledges and agrees that all of the obligations of
the undersigned under the Loan Agreement, as amended by this Seventh Amendment,
and the Guaranty is secured by that certain Security Agreement executed by the
undersigned in favor of Lender dated as of March 9, 2000.
Dated: June 30, 2002 MWSI LAMP & BALLAST RECYCLING, INC.,
A MINNESOTA CORPORATION
BY XXXX X. XXXXXXXX
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ITS CFO
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EXHIBIT A
LITIGATION (UPDATE)
None.
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SCHEDULE 6.6(c)
INDEBTEDNESS (UPDATE)
Business and D&O Insurance premium financing with Prime Financial.
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SCHEDULE 6.7(b)
LIENS (UPDATE)
None.
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