INCREASE AND JOINDER AGREEMENT
EXHIBIT 10.1
This
Increase and Joinder Agreement is dated as of June 30, 2017 (this
“Agreement”), and is among
the Persons identified on the signature pages hereof as Lenders
(which Persons (1) include each Person identified on the
signature pages hereof as a new Lender (each, a “New Lender”) and each
Person identified on the signature pages hereof as an existing
Lender, and (2) constitute the Required Lenders), XXXXX FARGO
BANK, NATIONAL ASSOCIATION, a national banking association
(“Xxxxx
Fargo”), as agent for the Lenders (Xxxxx Fargo, in
that capacity, “Agent”), 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”), and SOUTHERN
FRAC, LLC, a Texas limited liability company
(“Southern
Frac” and, together with Pac-Van, Lone Star and GFNRC,
each a “Borrower”).
The
Lenders, Agent, and Borrowers are party to an Amended and Restated
Credit Agreement dated as of April 7, 2014 (as amended,
restated, supplemented, or otherwise modified before the date of
this Agreement, the “Credit
Agreement”).
Borrowers desire to
effect an Increase under the Credit Agreement.
The
parties therefore agree as follows:
1. Definitions. Defined terms used but not
defined in this Agreem
ent are as defined in the Credit
Agreement.
2. Increase; Joinder by New
Lender.
(a) Borrowers desire to
effect an Increase in accordance with Section 2.14 of the
Credit Agreement in the amount of $7,000,000, such that the Maximum
Revolver Amount, after giving effect to that Increase, would
increase from $210,000,000 to $217,000,000. In connection with that
proposed Increase, Agent invited each existing Lender to
increase its Revolver Commitment; none of the existing
Lenders has agreed to increase its Revolver Commitment; and
each New Lender has agreed to provide a new Revolver
Commitment. Agent, Lenders, and the Loan Parties desire that the
proposed Increase become effective as of the effective date of this
Agreement.
(b) The parties hereby
acknowledge the following: that, for purposes of the GFC 2021
Notes Indenture, Borrowers will be deemed to have exercised
$25,000,000 in accordion increases under Section 2.14 of the
Credit Agreement after giving effect to the proposed Increase;
that the Maximum Revolver Amount will be $217,000,000 after
giving effect to the proposed Increase; that this Agreement
is an Increase Joinder; that the Increase Date for the
proposed Increase will be the effective date of this Agreement;
that each existing Lender is a Pre-Increase Revolving Lender;
and that each New Lender is a Post-Increase Revolving
Lender.
(c) Each New Lender
hereby does the following: confirms that it has received copies of
the Credit Agreement and the other Loan Documents, together with
copies of the financial statements referred to therein and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Agreement; agrees that it will, independently and without reliance
upon Agent or any other Lender, based upon such documents and
information as it deems appropriate at the time, continue to make
its own credit decisions in taking or not taking any action under
the Loan Documents; appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; and
agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
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(d) As of the effective
date of this Agreement, each New Lender will be a party to the
Credit Agreement and have the rights and obligations of a Lender
thereunder and under the other Loan Documents.
(e) In connection with
the proposed Increase and a substantially concurrent assignment
made in accordance with Section 13.1, Schedule C-1 to the
Credit Agreement is updated to read in its entirety as set forth in
Exhibit A to this Agreement.
(f) In accordance with
Section 2.14(e) of the Credit Agreement, each existing Lender
shall assign to each New Lender, and each New Lender shall purchase
from each existing Lender, at the principal amount thereof, such
interests in the Revolving Loans and participation interests in
Letters of Credit on the Increase Date for the proposed Increase as
are necessary in order that, after giving effect to all such
assignments and purchases, such Revolving Loans and participation
interests in Letters of Credit will be held by each existing Lender
and each New Lender ratably in accordance with its Pro Rata Share
after giving effect to the proposed Increase.
3. Representations. To induce Agent and the
Lenders to enter into this Agreement, each Borrower hereby
represents to Agent and the Lenders as follows:
(1)
that that Borrower
is duly authorized to execute and deliver this Agreement and is and
will continue to be duly authorized to borrow monies under the
Credit Agreement and to perform its obligations under the Credit
Agreement;
(2)
that the execution
and delivery of this Agreement and the performance by that Borrower
of its obligations under the Credit Agreement do not and will not
conflict with any provision of law or of the Governing Documents of
that Borrower or of any agreement binding upon that
Borrower;
(3)
that the Credit
Agreement is a legal, valid, and binding obligation of that
Borrower, enforceable against that Borrower in accordance with its
terms, except as enforceability is limited by bankruptcy,
insolvency, or other similar laws of general application affecting
the enforcement of creditors’ rights or by general principles
of equity limiting the availability of equitable
remedies;
(4)
that the
representations and warranties set forth in Section 4 of the
Credit Agreement are true and correct in all material respects (but
if any representation or warranty is by its terms qualified by
concepts of materiality, that representation or warranty is true
and correct in all respects), in each case with the same effect as
if such representations and warranties had been made on the date of
this Agreement, with the exception that all references to the
financial statements mean the financial statements most recently
delivered to Agent except for such changes as are specifically
permitted under the Credit Agreement and except to the extent that
any such representation or warranty expressly relates to an earlier
date;
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(5)
that that Borrower
has complied with and is in compliance with all of the covenants
set forth in the Credit Agreement including those set forth in
Section 5, Section 6, and Section 7 of the Credit
Agreement; and
(6)
that as of the date
of this Agreement, no Default or Event of Default has occurred and
is continuing.
4. Conditions. The effectiveness of this
Agreement is subject to satisfaction of the following
conditions:
(1)
that Agent has
received the following documents:
(A)
this Agreement
executed by Agent, the Lenders, and Borrowers;
(B)
a Guarantor
Acknowledgment in the form attached to this Agreement, executed by
each Guarantor; and
(C)
copies (executed or
certified, as appropriate) of all other legal documents or minutes
of proceedings taken in connection with the execution and delivery
of this Agreement to the extent Agent or its counsel reasonably
requests; and
(2)
that all legal
matters incident to the execution and delivery of this Agreement
are satisfactory to Agent and its counsel.
5. Release. Each Loan Party 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 Credit Agreement, any and all
documents and instruments delivered in connection with or relating
to the foregoing, or this Agreement. Each Loan Party hereby further
covenants and agrees not to xxx 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 Credit Agreement, any and all documents and instruments
delivered in connection with or relating to the foregoing, or this
Agreement.
6. Miscellaneous.
(a) This Agreement is
governed by, and is to be construed in accordance with, the laws of
the State of Illinois. Each provision of this Agreement is
severable from every other provision of this Agreement for the
purpose of determining the legal enforceability of any specific
provision.
(b) This Agreement
binds Agent, the Lenders, and Borrowers and their respective
successors and assigns, and will inure to the benefit of Agent, the
Lenders, and Borrowers and the successors and assigns of Agent and
each Lender.
(c) Except as
specifically modified or amended by the terms of this Agreement,
all other terms and provisions of the Credit Agreement and the
other Loan Documents are incorporated by reference in this
Agreement and in all respects continue in full force and effect.
Each Borrower, by execution of this Agreement, hereby reaffirms,
assumes, and binds itself to all of the obligations, duties,
rights, covenants, terms, and conditions that are contained in the
Credit Agreement and the other Loan Documents.
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(d) [Reserved].
(e) This Agreement is a
Loan Document. Each Borrower acknowledges that Agent’s
reasonable costs and out-of-pocket expenses (including reasonable
attorneys’ fees) incurred in drafting this Agreement and in
amending the Loan Documents as provided in this Agreement
constitute Lender Group Expenses.
(f) The parties may
sign this Agreement in several counterparts, each of which will be
deemed to be an original but all of which together will constitute
one instrument.
[Signature pages to
follow]
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The
parties are signing this Increase and Joinder Agreement as of the
date stated in the introductory clause.
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PAC-VAN, INC.,
as a
Borrower
By:
/s/ Xxxxxxxxxxx X.
Xxxxxx
Name: Xxxxxxxxxxx X.
Xxxxxx
Title:
Secretary
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LONE
STAR TANK RENTAL INC.,
as a
Borrower
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X.
Xxxxxx
Title:
Secretary
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GFN REALTY
COMPANY, LLC,
as a
Borrower
By:
/s/ Xxxxxxxxxxx X.
Xxxxxx
Name: Xxxxxxxxxxx X.
Xxxxxx
Title:
Secretary
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SOUTHERN
FRAC, LLC,
as a
Borrower
By:
GFN Manufacturing Corporation,
a Delaware corporation, as
Manager
By:
/s/ Xxxxxxxxxxx X.
Xxxxxx
Name: Xxxxxxxxxxx X.
Xxxxxx
Title:
Secretary
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Agent and as a Lender
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By:
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/s/ Xxxxx Xxxxx
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Name:
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Xxxxx Xxxxx
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Its Authorized Signatory
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ASSOCIATED
BANK, N.A.,
as a
new Lender
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By:
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/s/ Xxxxxxx Xxxxx
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Name:
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Xxxxxxx Xxxxx
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Its Authorized Signatory
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EAST
WEST BANK,
as an
existing Lender
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By:
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/s/ Xxxx X. Xxxx
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Name:
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Xxxx X. Xxxx
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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 an
existing Lender
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Its Authorized Signatory
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THE
PRIVATEBANK AND TRUST COMPANY,
as an
existing Lender
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By:
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/s/ Xxxxx Xxxxxxx
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Name:
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Xxxxx Xxxxxxx
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Its Authorized Signatory
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KEYBANK,
NATIONAL ASSOCIATION,
as an
existing Lender
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By:
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/s/ Xxxxxx X. Xxxxx
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Name:
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Xxxxxx X. Xxxxx
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Its: Vice President
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BANK
HAPOALIM B.M.,
as an
existing Lender
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By:
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/s/ Xxxxxx Xxxxxxx
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Name:
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Xxxxxx Xxxxxxx, Senior Vice President
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Its Authorized Signatory
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By:
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/s/ Xxxxxx Xxxx
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Name:
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Xxxxxx Xxxx, First Vice President
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Its Authorized Signatory
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Signature
page to Increase and Joinder Agreement (Pac-Van | Associated
Bank)
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GACP I,
L.P.,
a
Delaware limited partnership,
as an
existing Lender
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By:
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/s/ Xxxx Xxx
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Name:
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Xxxx Xxx
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Its Authorized Signatory
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Signature
page to Increase and Joinder Agreement (Pac-Van | Associated
Bank)
GUARANTOR
ACKNOWLEDGMENT
This
Guarantor Acknowledgment refers to, and is attached to, an Increase
and Joinder Agreement dated as of June 30, 2017, 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” and, together with Pac-Van, Lone Star, and
GFNRC, each a “Borrower”), the Lenders
identified on the signature pages thereof as Lenders, and Xxxxx
Fargo Bank, National Association, a national banking association,
as agent for the Lenders (the “Increase Agreement”).
Defined terms used but not defined in this Guarantor Acknowledgment
are as defined in the Increase Agreement.
Each of
the undersigned, in its capacity as a Guarantor, hereby does the
following: (1) consents to the Increase Agreement;
(2) acknowledges that the Increase Agreement does not in any
way modify, limit, or release any of its obligations under the
Guaranty and Security Agreement to which it is a party;
(3) ratifies and confirms its obligations under the Guaranty
and Security Agreement to which it is a party and acknowledges that
those obligations continue in full force and effect; and
(4) acknowledges that its consent to any other modification to
any Loan Document will not be required as a result of the consent
set forth in this Guarantor Acknowledgment having been obtained,
except to the extent, if any, required by the specific terms of
that Loan Document.
Dated
as of the date of the Increase Agreement.
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PV ACQUISITION
CORP.,
an
Alberta corporation
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X.
Xxxxxx
Title:
Secretary
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GFN MANUFACTURING
CORPORATION,
a
Delaware corporation
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X.
Xxxxxx
Title:
Secretary
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Guarantor
Acknowledgment to Increase and Joinder Agreement (Pac-Van |
Associated Bank)
EXHIBIT A
Replacement Schedule C-1 to Credit Agreement
(See
attached.)
SCHEDULE C-1
Commitments
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Lender
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Revolver Commitment
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Last-Out Term Loan Commitment
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Total Commitment
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Xxxxx Fargo Bank, National Association
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$67,000,000
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$0
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$67,000,000
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East West Bank
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$40,000,000
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$0
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$40,000,000
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CIT Bank, N.A. (f/k/a OneWest Bank N.A., successor in interest
to OneWest Bank, FSB)
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$35,000,000
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$0
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$35,000,000
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The PrivateBank and Trust Company
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$25,000,000
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$0
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$25,000,000
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KeyBank, National Association
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$20,000,000
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$0
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$20,000,000
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Bank Hapoalim B.M.
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$15,000,000
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$0
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$15,000,000
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Associated Bank, N.A.
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$15,000,000
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$0
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$15,000,000
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GACP I, L.P.
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$0
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$20,000,000
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$20,000,000
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All Lenders
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$217,000,000
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$20,000,000
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$237,000,000
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In accordance with the Credit Agreement, the Last-Out Term Loan
Commitment terminated upon the making of the Last-Out Term Loan on
the Amendment No. 6 Effective Date.
