EXHIBIT 10.20
SECOND AMENDMENT TO
LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT ("Second Amendment"), made and
entered into as of the 30th day of September, 1999, 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 First Amendment dated May 7, 1999 (the
"Credit Agreement").
B. The Borrower has requested the Lender increase the amount available
under the revolving loan to $1,000,000.
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.
2. Definitions.
2.1 The following definitions are hereby amended in their
entirety to read as follows:
"Maturity Date" means (i) May 1, 2000 with respect to the Term
Note, and (ii) May 1, 2000 with respect to the Revolving Note.
"Revolving Commitment Amount" means $1,000,000.
"Revolving Note" means that certain Revolving Credit
Promissory Note dated as of September 30, 1999 in the
principal amount of $1,000,000 made payable by Borrower to the
order of Lender as the same may be amended, executed, renewed
or replaced from time to time.
3. Conditions Precedent. Prior to the effectiveness of this Second
Amendment, the Borrower shall provide to the Lender as conditions precedent, the
following:
a. Original counterpart of this Second 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 Second 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 Second Amendment.
4. References. Any references in any document to the Agreement
including, but not limited to, the Notes and other Loan Documents, are hereby
amended to refer to the Agreement as amended by this Second Amendment.
5. Representations and Warranties. Borrower reaffirms and confirms all
of the representations and warranties contained in Article IV of the Agreement
as of the date of this Second Amendment.
6. Covenants. Borrower reaffirms as of the date of this Second
Amendment and covenants with the Lender all of the Covenants contained in
Articles V and VI of the Agreement.
7. Reaffirmation of Security Agreement. Borrower hereby acknowledges
and agrees that all of the obligations of Borrower under the Agreement, as
amended by this Second Amendment, is secured by that certain Security Agreement
executed by Borrower in favor of Lender dated as of May 8, 1998.
8. Acknowledgments. The Borrower acknowledges that it has been advised
by the counsel of its choice in the negotiation, execution and delivery of this
Second 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.
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9. Costs and Expenses. Borrower agrees to pay all costs and expenses
incurred by Lender in connection with the preparation of this Second Amendment,
including, but not limited to, title insurance premiums and expenses, recording
fees, and the fees and expenses of Lender's special legal counsel, Xxxxxx and
Xxxxxx, P.A.
10. Entire Agreement. This Second Amendment and the Agreement embody
the entire agreement between the parties and supersede all prior agreements and
understandings between the parties hereto.
11. Full Force and Effect. Except as amended hereby, the provisions of
the Agreement shall remain unmodified and in full force and effect.
12. Counterparts. This Second 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 Second Amendment to
Loan Agreement 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 Chairman
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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 Second Amendment to
Loan Agreement, 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 /s/ Xxxx X. Xxxxxxxx
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ITS CFO
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REVOLVING CREDIT
PROMISSORY NOTE
$1,000,000.00 September 30, 0000
Xxxxxxxxxxx, Xxxxxxxxx
FOR VALUE RECEIVED, the undersigned, MERCURY WASTE SOLUTIONS, INC.,
Minnesota corporation ("Maker") promises to pay to the order of BANKERS AMERICAN
CAPITAL CORPORATION, ("Lender") at its office at 000 X. Xxxxxxxxxx Xxxxx,
Xxxxxxx, XX 00000, or any other place subsequently designated in writing by the
holder hereof, the principal sum of up to ONE MILLION AND No/100 Dollars
($1,000,000), or if less, the aggregate unpaid principal outstanding hereon,
together with interest at a variable rate equal to the Prime Rate plus six
percent (6%) per annum. Interest shall be computed on the actual days elapsed in
a year of 360 days. For purposes of this Note, "Prime Rate" shall mean the rate
of interest published from time to time in the Money Rates Column of the Money &
Investing Section of the WALL STREET JOURNAL as the "Prime Rate", as the same
may change from time to time.
Interest accruing on this Note shall be payable monthly, commencing
October 1, 1999, and on the first day of each month thereafter until the
Maturity Date (as defined in the Loan Agreement), at which time the entire
principal balance outstanding plus all unpaid accrued interest shall be due and
payable in full.
Maker may borrow and repay and reborrow against this Note, up to the
maximum principal amount outstanding at any one time of $1,000,000 to fund
Maker's working capital needs.
Both principal and interest are payable in lawful money of the United
States of America to Lender at the office of Lender at the location described
above.
This Note may be prepaid in whole or in part at any time without
penalty or premium.
This Note is issued pursuant to the terms of that certain Loan
Agreement by and between Maker and Lender dated May 8, 1998, as amended by First
Amendment to Loan Agreement dated May 7, 1999, as further amended by Second
Amendment to Loan Agreement dated September 30, 1999, as the same may be amended
from time to time (the "Loan Agreement") to which reference is made for the
terms and conditions under which this Note was issued and the events upon the
occurrence of which the Lender may declare all sums outstanding hereon due and
payable in full immediately. This Note is secured by the assets of the Maker
pursuant to that certain Security Agreement dated May 8, 1998 executed by Maker
in favor of Lender, as the same may be amended from time to time (the "Security
Agreement"), and the other collateral, as set forth in the Loan Agreement, and
is guaranteed by MWS New York, Inc., a wholly owned subsidiary of Maker,
pursuant to the terms of a certain Guaranty dated May 8, 1998 in favor of Lender
(the "Guaranty").
$1,000,000 September 30, 0000
Xxxxxxxxxxx, Xxxxxxxxx
Maker hereby waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest hereon, agrees that when or at any
time after this Note becomes due, the holder hereof may, without notice, offset
or charge this Note against any Lender account or other account when maintained
by Maker with the holders hereof, and agrees to pay, upon the occurrence of an
Event of Default (as defined in the Loan Agreement) all costs of collection,
including, but not limited to, reasonable attorneys' fees, whether or not suit
is commenced.
This Note shall be governed by, interpreted and construed in accordance
with the internal laws of the State of Minnesota. The undersigned hereby
consents to the personal jurisdiction of the state and federal courts located in
the State of Minnesota in connection with any controversy related to this Note,
waives any argument that venue in such forums is not convenient and agrees that
any litigation instigated by the undersigned against the Lender in connection
with this Note, or any document or instrument securing payment of this Note
shall be venued in either the District Court of Hennepin County, Minnesota or
the United States District Court for the District of Minnesota, Fourth Division.
[insert]
MERCURY WASTE SOLUTIONS, INC.,
A MINNESOTA CORPORATION
BY /s/ Xxxx X. Xxxxxxxx
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ITS CFO
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