OMNIBUS AMENDMENT AND REAFFIRMATION AGREEMENT
EXHIBIT
10.1
This
Omnibus Amendment and Reaffirmation Agreement is dated as of
March 24, 2017 (this “Agreement”), and is among
PAC-VAN, INC., an Indiana corporation (“Pac-Van”), LONE STAR TANK
RENTAL INC., a Delaware corporation (“Lone Star”),
GFN REALTY COMPANY, LLC, a Delaware limited liability
company (“GFNRC”), SOUTHERN
FRAC, LLC, a Texas limited liability company
(“Southern
Frac”), PV ACQUISITION CORP., an Alberta
corporation and a Subsidiary of Pac-Van (“PV Acquisition”),
GFN MANUFACTURING CORPORATION, a Delaware corporation
(“GFN Manufacturing”),
GFN NORTH AMERICA CORP., a Delaware corporation
(“GFN”
and, together with Pac-Van, Lone Star, GFNRC, Southern Frac,
PV Acquisition, and GFN Manufacturing, each a
“Credit
Party”), the Lenders identified on the signature pages
hereof as Lenders (which Lenders constitute, as applicable, the
Required Lenders, the Supermajority Lenders, and each Lender
directly affected by this Agreement), and ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, a national banking association, as
Agent.
This
Agreement refers to an Amended and Restated Credit Agreement dated
as of April 7, 2014, by and among certain Credit Parties,
certain Lenders, and Agent, as administrative agent (that
agreement, as amended, restated, supplemented, or otherwise
modified before the date of this Agreement, the “Existing Credit
Agreement”).
This
Agreement also refers to the following Existing Ancillary Documents
(as further defined below), each entered into or joined in
connection with the Existing Credit Agreement:
(1)
(A) a Guaranty
and Security Agreement dated as of September 7, 2012, among
Pac-Van, each other Person party thereto as a
“Grantor,” and Agent (that agreement, as amended,
restated, supplemented, or otherwise modified before the date of
this Agreement, including as amended by Amendment No. 5, the
“U.S. Guaranty
and Security Agreement”), which is the
“U.S. Guaranty and Security Agreement” under and
as defined in the Credit Agreement and a copy of which is attached
as Exhibit A-1; and
(B) an Amendment to Loan Documents dated as of
February 7, 2014, between, inter alia, Pac-Van, certain Lenders,
and Agent (that agreement, “Amendment No. 5”),
which, among other things, amended the Existing Credit Agreement
and the U.S. Guaranty and Security Agreement and a copy of
which is attached as Exhibit A-2;
(2)
a Guaranty and
Security Agreement dated as of September 7, 2012, among
PV Acquisition, each other Person party thereto as a
“Grantor,” and Agent (that agreement, as amended,
restated, supplemented, or otherwise modified before the date of
this Agreement, the “Canadian Guaranty and Security
Agreement”), which is the
“Canadian Guaranty and Security Agreement” under
and as defined in the Credit Agreement and a copy of which is
attached as Exhibit B;
(3)
a Pledge Agreement
dated as of September 7, 2012, made by GFN in favor of Agent
(that agreement, as amended, restated, supplemented, or otherwise
modified before the date of this Agreement, the “GFN–Pac-Van Pledge
Agreement”), a copy of which is attached as
Exhibit C;
(4)
a Pledge Agreement
dated as of April 7, 2014, made by GFN in favor of Agent (that
agreement, as amended, restated, supplemented, or otherwise
modified before the date of this Agreement, the “GFN–Lone Star Pledge
Agreement”), a copy of which is attached as
Exhibit D;
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(5)
(A) a Master
Intercompany Demand Note dated as of September 7, 2012, made
by Pac-Van, PV Acquisition, and each other Person party
thereto as a “Debtor Obligor” in favor of each
“Creditor Obligor” (that note, as amended, restated,
replaced, supplemented, or otherwise modified before the date of
this Agreement, the “Intercompany Note”); and
(B) an endorsement to the Intercompany Note made by GFN,
Pac-Van, and each other “Creditor Obligor” under and as
defined in the Intercompany Note to Agent (that endorsement, as
amended, restated, supplemented, or otherwise modified before the
date of this Agreement, the “Endorsement”), a copy of
which, together with a copy of the Intercompany Note, is attached
as Exhibit E;
and
(6)
(A) an
Intercompany Subordination Agreement dated as of September 7,
2012, by and among GFN, Pac-Van, PV Acquisition, each other
Person party thereto as an “Obligor,” and Agent (that
agreement, as amended, restated, supplemented, or otherwise
modified before the date of this Agreement, the “Intercompany Subordination
Agreement”), which is the “Intercompany
Subordination Agreement” under and as defined in the Credit
Agreement and a copy of which is attached as Exhibit F-1; (B) an
Amendment No. 1 to Intercompany Subordination Agreement dated
as of February 7, 2014, between GFN, Pac-Van,
PV Acquisition, each other Person party thereto as an
“Obligor,” and Agent, which amended the Intercompany
Subordination Agreement and a copy of which is attached as
Exhibit F-2;
(C) an Omnibus Joinder, Release, Amendment, and Reaffirmation
Agreement dated as of April 7, 2014, among, inter alia, GFN, Pac-Van, Lone Star,
PV Acquisition, and Agent, which, among other things, amended
the Intercompany Subordination Agreement and a copy of which
(without attachments) is attached as Exhibit F-3; (D) an
Amendment No. 2 to Intercompany Subordination Agreement dated
as of January 6, 2015, between GFN, Pac-Van, Lone Star, and
Agent, which amended the Intercompany Subordination Agreement and a
copy of which is attached as Exhibit F-4; and
(E) an Amendment No. 3 to Intercompany Subordination
Agreement dated as of June 30, 2015, between GFN, Pac-Van,
Lone Star, GFNRC, Southern Frac, PV Acquisition, and Agent,
which amended the Intercompany Subordination Agreement and a copy
of which is attached as Exhibit F-5.
Certain
Credit Parties, certain Lenders, and Agent are now entering into an
Amendment No. 6 to Amended and Restated Credit Agreement dated
as of the date of this Agreement (that amendment,
“Amendment
No. 6”; the Existing Credit Agreement, as amended
by Amendment No. 6 and as further amended, restated,
supplemented, or otherwise modified from time to time, the
“Credit
Agreement”). It is a condition to the effectiveness of
Amendment No. 6 that the parties have entered into this
Agreement to amend and reaffirm the Existing Ancillary Documents,
as applicable.
The
parties therefore agree as follows:
1. Definitions.
Capitalized terms used but not defined in this Agreement shall have
the meaning given to them in the Credit Agreement. For purposes of
this Agreement, the U.S. Guaranty and Security Agreement, the
Canadian Guaranty and Security Agreement, the GFN–Pac-Van
Pledge Agreement, the GFN–Lone Star Pledge Agreement, the
Intercompany Note, the Endorsement, the Intercompany Subordination
Agreement, the Fee Letter, and all documents executed in connection
with each of the foregoing (but excluding, however, the Existing
Credit Agreement), are referred to as the “Existing Ancillary
Documents,” and each is referred to as an
“Existing Ancillary
Document.” Unless the context of this Agreement
clearly requires otherwise, references to the plural include the
singular and references to the singular include the
plural.
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2. Amendments to
Existing Ancillary Documents.
(a) Each reference to
the Existing Credit Agreement in each Existing Ancillary Document
is deemed to refer to the Credit Agreement.
(b) Section 4(a)(ii)
of the Intercompany Subordination Agreement is hereby amended to
read in its entirety as follows:
“ (ii) To
GFN. Each Debtor Obligor may make Subordinated Debt Payments
to GFN in it is capacity as a Creditor Obligor, and GFN in its
capacity as a Creditor Obligor shall be entitled to accept and
receive those Subordinated Debt Payments, so long as (A) no
Default or Event of Default has occurred and is continuing or would
result therefrom, (B) each Borrower is Solvent,
(C) Excess Availability is greater than or equal to
$21,000,000, (D) the Fixed Charge Coverage Ratio, measured on
a trailing-twelve-months’ basis as of the end of the most
recently completed month for which financial statements have been
provided to Agent pursuant to Section 5.1, both actual
and giving pro forma effect
to the making of any such Subordinated Debt Payment, will be
greater than 1.25 to 1.00, and (E) those Subordinated Debt
Payments are not otherwise expressly prohibited under the Credit
Agreement.”
(c) Schedule 1
{Commercial Tort Claims}, Schedule 2 {Copyrights}, Schedule 3
{Intellectual Property Licenses}, Schedule 4 {Patents}, Schedule 5
{Pledged Companies}, Schedule 6 {Trademarks}, Schedule 7 {Name;
Chief Executive Office; Tax Identification Number; and
Organizational Number}, Schedule 8 {Owned Real Property}, Schedule
9 {Deposit Accounts and Securities Accounts}, Schedule 10
{Controlled Account Banks}, Schedule 11 {List of Uniform Commercial
Code Filing Jurisdictions}, and Schedule 12 {Certificated Units} to
the U.S. Guaranty and Security Agreement are hereby amended
and restated in their entirety to read as set forth on Exhibit H.
(d) Schedule 2
{Copyrights}, Schedule 3 {Intellectual Property Licenses}, Schedule
4 {Patents}, Schedule 5 {Pledged Companies}, Schedule 6
{Trademarks}, Schedule 7 {Name; Chief Executive Office; Registered
Office; Tax Identification Number; and Organizational Number},
Schedule 8 {Owned Real Property}, Schedule 9 {Deposit Accounts and
Securities Accounts}, Schedule 10 {Controlled Account Banks},
Schedule 11 {List of PPSA Filing Jurisdictions}, and Schedule 12
{Certificated Units} to the Canadian Guaranty and Security
Agreement are hereby amended and restated in their entirety to read
as set forth on Exhibit I.
3. Perfection
Certificates. Attached as Exhibit J are one or more
Perfection Certificates with respect to each Loan Party. To induce
Agent and the Lenders to enter into Amendment No. 6 and to
induce the Lenders to make or to continue to make their respective
Extensions of Credit to the Borrowers, each applicable Credit Party
hereby represents and warrants to Agent and each Lender that each
such Perfection Certificate is complete and accurate in all
respects as of the date hereof.
4. Schedules to
Guaranty and Security Agreements. To induce Agent and the
Lenders to enter into Amendment No. 6 and to induce the
Lenders to make or to continue to make their respective Extensions
of Credit to the Borrowers, each applicable Credit Party hereby
represents and warrants to Agent and each Lender that the
information on the schedules to the U.S. Guaranty and Security
Agreement (with respect to Schedules 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,
11, and 12, as amended and restated pursuant to Section 3(c) of
this Agreement) and the Canadian Guaranty and Security Agreement
(with respect to Schedules 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and
12, as amended and restated pursuant to Section 3(d) of this
Agreement) is complete and accurate in all respects as of the date
hereof.
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5. Reaffirmation.
Each Credit Party hereby (a) reaffirms each of the agreements and
covenants in the Existing Ancillary Documents with the same force
and effect as if each was separately stated herein and made as of
the date hereof; (b) ratifies and reaffirms all of its payment and
performance obligations and obligations to indemnify, contingent or
otherwise, under the Existing Ancillary Documents and (c) confirms
that the Existing Ancillary Documents are in full force and effect.
Each “Loan Document” under and as defined in the
Existing Agreement that is now in effect and is not separately
amended or reaffirmed by this Agreement or separately modified or
terminated in connection with Amendment No. 6 constitutes a
Loan Document under the Credit Agreement and remains in full force
and effect.
6. Representations.
Each of the Credit Parties represents to Agent and the Lenders as
follows:
(1)
that the execution,
delivery, and performance by such Person of this Agreement have
been duly authorized by all necessary company action required on
its part, and this Agreement is a legal, valid and binding
obligation of such Person enforceable against such Person in
accordance with its terms except as the enforcement thereof may be
subject to (A) the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and (B) general principles of
equity (regardless of whether enforcement is sought in a proceeding
in equity or at law);
(2)
that each
representation and warranty contained in the Existing Ancillary
Documents and the other Loan Documents to which such Person is a
party is true and correct in all respects as of the date hereof,
after giving effect to this Agreement;
(3)
that neither the
execution, delivery and performance of this Agreement by such
Person nor the consummation of the transactions contemplated hereby
does or shall contravene, result in a breach of or violate (A) any
provision of such Person’s certificate or articles of
incorporation or formation and bylaws or operating agreement, as
appropriate; (B) any law or regulation, or any order or decree of
any court or government instrumentality applicable to such Credit
Party or (C) any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which such Credit Party is a party
or by which such Credit Party or any of its property is bound
(including, without limitation, the GFC 2021 Notes Indenture);
and
(4)
that no Default or
Event of Default has occurred and is continuing.
7. Conditions.
The effectiveness of this Agreement is subject to the satisfaction
of the following conditions precedent:
(1)
that Agent has
received this Agreement executed by the Administrative Agent, the
Lenders, and the Credit Parties;
(2)
that all conditions
set forth in Section 5 of Amendment No. 6 have been
satisfied; and
(3)
that all legal
matters incident to the execution and delivery of this agreement
are reasonably satisfactory to Agent and its counsel.
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8. Release.
Each of the Credit Parties hereby waives and releases any and all
current existing claims, counterclaims, defenses, or set-offs of
every kind and nature which it has or might have against Agent or
any Lender arising out of, pursuant to, or pertaining in any way to
the Existing Ancillary Documents, any and all documents and
instruments delivered in connection with or relating to the
foregoing, or this Agreement. Each of the Credit Parties hereby
further covenants and agrees not to ▇▇▇ Agent or any Lender or
assert any claims, defenses, demands, actions, or liabilities
against Agent or any Lender which occurred prior to or as of the
date of this Agreement arising out of, pursuant to, or pertaining
in any way to the Existing Ancillary Documents, any and all
documents and instruments delivered in connection with or relating
to the foregoing, or this Agreement.
9. Successors and
Assigns. This Agreement shall be binding upon each of the
Credit Parties and upon their respective executors, administrators,
successors and assigns and shall inure to the benefit of Agent and
the Lenders and their respective successors and assigns. All
references herein to a Credit Party shall be deemed to include the
successors and assigns of such Person. The successors and assigns
of the Credit Parties shall include, without limitation, their
respective receivers, trustees and
debtors-in-possession.
10. Further
Assurances. Each Credit Party hereby agrees from time to
time, as and when requested by Agent or any Lender, to execute and
deliver or cause to be executed and delivered all such documents,
instruments and agreements and to take or cause to be taken such
further or other action as Agent or such Lender may reasonably deem
necessary or desirable in order to carry out the intent and
purposes of this Agreement and the other Loan
Documents.
11. Loan
Document. This Agreement shall be deemed to be a “Loan
Document” for all purposes under the Credit
Agreement.
12. Governing
Law. This
Agreement and any claim, controversy, dispute or cause of action
(whether in contract or tort or otherwise) based upon, arising out
of or relating to this Agreement shall be governed by, and
construed in accordance with, the law of the State of
Illinois.
13. Severability.
Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be valid under applicable law. If
any provision is found to be invalid under applicable law, it shall
be ineffective only to the extent of such invalidity and the
remaining provisions of this Agreement shall remain in full force
and effect.
14. Entire
Agreement. Time is of the essence of this Agreement. This
Agreement constitutes the entire contract among the parties
relating to the subject matter hereof, and supersedes any and all
previous agreements and understandings, oral or written, relating
to the subject matter hereof.
15. Execution in
Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all
of which when taken together shall constitute a single contract.
Delivery of a signature page of this Agreement by telecopy or other
electronic means shall be effective as delivery of a manually
executed counterpart of such agreement.
16. Costs and
Expenses. The Borrowers shall, in accordance with
Section 15.5 of the Credit Agreement, reimburse Agent and
Lenders for all fees, costs, and expenses, including the reasonable
fees, costs and expenses of counsel or other advisors for advice,
assistance or other representation in connection with this
Agreement.
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17. Reference to and
Effect Upon the Loan Documents. Except as expressly set
forth in Section 7(c) of Amendment No. 6, the Loan
Documents (including, without limitation, the Existing Ancillary
Documents) shall remain in full force and effect, as amended
hereby, and are hereby ratified and confirmed. The execution,
delivery, and effectiveness of this Agreement shall not operate as
a waiver of any right, power or remedy of Agent or any Lender under
any of the Loan Documents (including, without limitation, the
Existing Ancillary Documents) nor constitute a waiver or amendment
of any provision of any of the Loan Documents (including, without
limitation, the Existing Ancillary Documents). Upon the
effectiveness of this Agreement, (i) each reference in the
Existing Ancillary Documents to “this Agreement,”
“hereunder,” “hereof,”
“herein,” or words of similar import shall mean and be
a reference to such Existing Ancillary Document as amended hereby
and (ii) each reference in any Loan Document (including,
without limitation, any Existing Ancillary Document) to the
“Credit Agreement” shall be deemed to be a reference to
the Credit Agreement as defined in this Agreement.
18. Section
Headings. The section headings herein are for convenience of
reference only, and shall not affect in any way the interpretation
of any of the provisions hereof.
[Signature
pages to follow.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Omnibus
Amendment and Reaffirmation Agreement to be executed and delivered
as of the date first above written.
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PAC-VAN, INC.
By:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Secretary
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LONE
STAR TANK RENTAL INC.
By:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Secretary
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GFN REALTY
COMPANY, LLC
By:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Secretary
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SOUTHERN
FRAC, LLC
By: GFN
Manufacturing Corporation,
a Delaware corporation, as Manager
By:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Secretary
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PV ACQUISITION
CORP.
By:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Secretary
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GFN MANUFACTURING
CORPORATION
By:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Secretary
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GFN NORTH
AMERICA CORP.
By: /s/
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Secretary
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▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION,
as
Agent and as a Lender
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇▇▇▇▇
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Its Authorized Signatory
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EAST
WEST BANK,
as a
Lender
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its Authorized Signatory
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CIT
BANK, N.A.,
f/k/a
OneWest Bank N.A.,
successor in
interest to OneWest Bank, FSB,
as a
Lender
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By:
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/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its Authorized Signatory
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THE
PRIVATEBANK AND TRUST COMPANY,
as a
Lender
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
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Its Authorized Signatory
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KEYBANK, NATIONAL
ASSOCIATION,
as a
Lender
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its Authorized Signatory
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BANK
HAPOALIM B.M.,
as a
Lender
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
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Its Authorized Signatory
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President
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Its Authorized Signatory
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GACP
I, L.P.,
a
Delaware limited partnership,
as a
Lender
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By:
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/s/ ▇▇▇▇ ▇▇▇
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Name:
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▇▇▇▇ ▇▇▇
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Its Authorized Signatory
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Signature
page to Omnibus Amendment and Reaffirmation Agreement
(Pac-Van)
EXHIBIT A-1
U.S. Guaranty and Security Agreement
See
attached.
EXHIBIT A-2
Amendment No. 5
See
attached.
EXHIBIT B
Canadian Guaranty and Security Agreement
See
attached.
EXHIBIT C
GFN–Pac-Van Pledge Agreement
See
attached.
EXHIBIT D
GFN–Lone Star Pledge Agreement
See
attached.
EXHIBIT E
Intercompany Note; Endorsement
See
attached.
EXHIBIT F-1
Intercompany Subordination Agreement
See
attached.
EXHIBIT F-2
Amendment No. 1 to Intercompany Subordination
Agreement
See
attached.
EXHIBIT F-3
Omnibus Joinder, Release, Amendment, and Reaffirmation Agreement
(April 7, 2014)
See
attached.
EXHIBIT F-4
Amendment No. 2 to Intercompany Subordination
Agreement
See
attached.
EXHIBIT F-5
Amendment No. 3 to Intercompany Subordination
Agreement
See
attached.
EXHIBIT G
[Reserved]
EXHIBIT H
Schedules to U.S. Guaranty and Security Agreement
See
attached.
EXHIBIT I
Schedules to Canadian Guaranty and Security
Agreement
See
attached.
EXHIBIT J
Perfection Certificate(s)
See
attached.