AMENDMENT TO MASTER LOAN AND SECURITY AGREEMENT
Exhibit 10.4
AMENDMENT TO MASTER LOAN AND SECURITY AGREEMENT
This Amendment to Master Loan and Security Agreement (this “Amendment”), dated as of August 12,
2011, is made and entered into by and between General Electric Capital Corporation (“Lender”) and
Choice Environmental Services, Inc. (“Debtor”).
WHEREAS, Debtor and Lender have entered into that certain Loan and Security Agreement dated as of
the date hereof (as amended and supplemented, the “Security Agreement”); and
WHEREAS, Debtor and Lender desire to amend the Security Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Debtor and Lender hereby agree as follows:
Section 1. Security Agreement Amendments. The Security Agreement is hereby amended as
provided in this Section.
(a) The second clause of the first sentence of Section 1.2 of the Security Agreement is hereby
amended by deleting such clause in its entirety and replacing it with the following:
the Equipment is free from and will be kept free from all liens, claims, security interests and
encumbrances other than that created hereby or those that have been approved by Lender, in writing;
(b) The second clause of the first sentence of Section 2.2 of the Security Agreement is hereby
amended by deleting such clause in its entirety and replacing it with the following:
to extinguish or defend any action, proceeding or claim affecting the Equipment except those that
have been approved by Lender, in writing;
(c) Section 3.5 of the Security Agreement is hereby amended by adding the following sentence
to the end of such Section:
Notwithstanding the foregoing, Lender shall maintain as confidential any Confidential Information
(as defined in that certain Confidentiality Agreement dated as of March 21, 2011, between Lender
and Debtor (the “Confidentiality Agreement”)) as provided in and required by the terms and
conditions of the Confidentiality Agreement.
(d) Clause (e) of Section 5.1 of the Security Agreement is hereby amended by deleting such
clause in its entirety and replacing it with the following:
(e) (i) Debtor or a Guarantor becomes insolvent, ceases to do business as a going concern, makes an
assignment for the benefit of creditors, or takes advantage of any law for the relief of debtors,
or (ii) a petition in bankruptcy or for an arrangement, reorganization, or similar relief is filed
by or against Debtor or a Guarantor and is not dismissed within thirty (30) days, or (iii) any
material property of Debtor or a Guarantor is attached, or a trustee or receiver is appointed for
Debtor or a Guarantor or for substantial part of its property, or Debtor or a Guarantor applies for
such appointment;
(e) Clause (f) of Section 5.1 of the Security Agreement is hereby amended by deleting such
clause in its entirety and replacing it with the following:
(f) any of the Equipment is lost or destroyed and Debtor does not pay Lender the full amount of all
indebtedness related to such Equipment within thirty (30) days of such loss or destruction;
(f) Clause (p) of Section 5.1 of the Security Agreement is hereby amended by deleting such
clause in its entirety and replacing it with the following:
(p) [intentionally omitted];
(g) Clause (q) of Section 5.1 of the Security Agreement is hereby amended by deleting such
clause in its entirety and replacing it with the following:
(q) there shall be any lien, claim or encumbrance on any of the Equipment except in favor of Lender
or as otherwise granted or permitted herein.
(h) Section 7.2 of the Security Agreement is hereby amended by deleting the final sentence of
such Section and replacing it with the following:
Upon Lender’s assignment of Lender’s entire interest in this Agreement and assignee’s assumption of
Lender’s obligations hereunder, Lender shall be relieved, from and after the date of such
assignment, of any liability for the performance of any obligation of Lender contained in this
Agreement or any document executed in conjunction with this Agreement.
(i) Clause (j) of Section 7.3 of the Security Agreement is hereby amended by deleting such
clause in its entirety and replacing it with the following:
(j) So long as any of the Liabilities remains unpaid or unperformed, Debtor will provide Lender
with such financial information as Lender may reasonably request, including copies of Debtor’s
financial statements within 45 days of the end of each of Debtor’s fiscal quarters and within 90
days after the end of each of Debtor’s fiscal years. Such financial statements shall be prepared in
accordance with GAAP and on the same basis (reviewed, audited, unaudited, etc.) as Debtor’s
financial statements are currently prepared unless advised by Lender otherwise, at which time
Debtor will comply with Lender’s request. Debtor represents and warrants that all financial
statements delivered will present fairly the financial condition and results of operations and cash
flows of the Debtor as of the dates thereof and for the periods then ended.
(j) Clause (l) of Section 7.3 of the Security Agreement is hereby amended by deleting such
clause in its entirety and replacing it with the following:
(l) Debtor hereby agrees to indemnify, defend and hold harmless Lender and its Affiliates and
respective principals, directors, officers, employees, representatives, agents and third-party
advisors (each, an “Indemnified Party”) from and against any and all losses, disputes, claims,
expenses (including, without limitation, legal expenses), damages and liabilities of whatsoever
kind and nature (collectively, “Claims”) arising out of, in connection with, or relating to the
Equipment, this Agreement or any other document related hereto; provided, however, that Debtor
shall not be liable to indemnify an Indemnified Party pursuant to such indemnity to the extent that
a court of final jurisdiction determines that such Claims were caused by the gross negligence or
willful misconduct of such Indemnified Party. If allowed by law, the legal expenses shall include
the amount of any flat fee, retainer, contingent fee or the hourly charges of any attorney retained
by Lender in enforcing any of Lender’s rights hereunder or in the prosecution or defense of any
litigation related to this Agreement or the transactions contemplated by this Agreement. This
indemnification shall survive the termination or expiration of this Agreement.
(k) The Delivery and Acceptance of Equipment Section of any Schedule A to the Security
Agreement is hereby amended by adding the following sentence to the end of such Section:
Notwithstanding the foregoing, Debtor’s acceptance of the Equipment as to Lender as provided in
this Schedule A shall not preclude or limit any of Debtor’s applicable rights against any
distributer or manufacturer of the Equipment.
Section 2. Limitations. The amendment set forth herein is limited precisely as written and
shall not be deemed to (a) be a consent to, or waiver or modification of, any other term or
condition of the Security Agreement, or (b) prejudice any right or rights which Lender may now have
or may have in the future under or in connection with the Security Agreement or any of the other
documents referred to therein. Except as expressly modified hereby or by express written
amendments thereof, the terms and provisions of the Security Agreement or any other documents or
instruments executed in connection with the foregoing are and shall remain in full force and
effect. In the event of a conflict between this Amendment and any of the foregoing documents, the
terms of this Amendment shall be controlling.
Section 3. Entire Agreement. This Amendment and the documents referred to herein represent
the entire understanding of the parties hereto regarding the subject matter hereof and supersede
all prior and contemporaneous oral and written agreements of the parties hereto with respect to the
subject matter hereof.
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Section 4. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties on separate counterparts and all of such counterparts shall together constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered
by their respective duly authorized officers as of the date first above written.
LENDER: GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxx
Name: Xxxxx Xxxxxxxxxxx
Title: Authorized Representative
Name: Xxxxx Xxxxxxxxxxx
Title: Authorized Representative
DEBTOR: CHOICE ENVIRONMENTAL SERVICES, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: EVP
Name: Xxxxxx Xxxxxx
Title: EVP
GUARANTOR CONSENT
The undersigned Guarantor confirms its guaranty obligations with respect to the Security Agreement as amended and supplemented and consents to the Amendment set forth above and agrees that Guarantor’s obligations and duties to Lender with regard to the Security Agreement shall not be impaired or otherwise affected by the execution thereof.
The undersigned Guarantor confirms its guaranty obligations with respect to the Security Agreement as amended and supplemented and consents to the Amendment set forth above and agrees that Guarantor’s obligations and duties to Lender with regard to the Security Agreement shall not be impaired or otherwise affected by the execution thereof.
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