EXHIBIT 10.23
FOURTH AMENDMENT TO
LOAN AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AGREEMENT ("Fourth Amendment"), made and
entered into as of the 14th day of August, 2000, by and between MERCURY WASTE
SOLUTIONS, INC., a Minnesota corporation ("Borrower") and BANKERS AMERICAN
CAPITAL CORPORATION, a Minnesota corporation ("Lender");
RECITALS
A. The 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, as amended by that certain Second Amendment dated September 30, 1999, as
amended by that certain Third Amendment dated March 9, 2000 (the "Credit
Agreement").
B. The Lender has requested a decrease in the total amount available
under the revolving loan to $1,500,000, and Borrower is willing to consent to
such decrease pursuant to the terms and conditions of this Fourth Amendment.
C. The parties hereto desire to amend the terms of the Credit Agreement
upon the terms and conditions hereinafter set forth.
AGREEMENT
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 Credit Agreement as follows:
1. Capitalized Terms. All capitalized terms not defined herein shall
have the meanings assigned such terms in the Credit Agreement, unless otherwise
defined herein. In addition:
"Revolving Commitment Amount" means $1,500,000.
"Revolving Note" means that certain Revolving Credit
Promissory Note dated as of the date hereof 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. On the date of this Agreement, the
amount outstanding under the Revolving Note is $1,315,000.
2. Conditions Precedent. Prior to the effectiveness of this Fourth
Amendment, the Borrower shall provide to the Lender as conditions precedent, the
following:
a. Original counterpart of this Fourth Amendment duly
executed by the Borrower;
b. Original executed Revolving Note;
c. Payment of all costs and expenses incurred by the
Lender in connection with this Fourth Amendment,
including without limitation, all legal fees and
out-of-pocket expenses of Lender's counsel; and
d. Current resolutions of Borrower's board of directors
authorizing the Fourth Amendment.
3. References. Any references in any document to the Credit Agreement
including, but not limited to, the Notes and other Loan Documents, are hereby
amended to refer to the Credit Agreement as amended by this Fourth Amendment.
4. Representations and Warranties. Borrower reaffirms and confirms all
of the representations, covenants and warranties contained in Articles IV and V
of the Credit Agreement as of the date of this Fourth Amendment.
5. Reaffirmation of Security Agreement. Borrower hereby acknowledges
and agrees that all of the obligations of Borrower under the Credit Agreement,
as amended by this Fourth Amendment, is secured by that certain Security
Agreement executed by Borrower in favor of Lender dated as of May 8, 1998.
6. Acknowledgments. The Borrower acknowledges that it has been advised
by the counsel of its choice in the negotiation, execution and delivery of this
Fourth 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.
7. Costs and Expenses. Borrower agrees to pay all costs and expenses
incurred by Lender in connection with the preparation of this Fourth Amendment,
including, but not limited to, title insurance premiums and expenses, recording
fees, and the fees and expenses of legal counsel.
8. Entire Agreement. This Fourth Amendment and the Agreement embody the
entire agreement between the parties and supersede all prior agreements and
understandings between the parties hereto.
9. Full Force and Effect. Except as amended hereby, the provisions of
the Credit Agreement shall remain unmodified and in full force and effect.
10. Counterparts. This Fourth 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.
IN WITNESS WHEREOF, the parties have caused this Fourth 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 /S/ 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 Fourth 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.
MWS NEW YORK, INC.,
A MINNESOTA CORPORATION
BY XXXX X. XXXXXXXX
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ITS CFO
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