Exhibit
4.1


 


AMENDMENT NO. 3


AND CONSENT


TO AMENDED AND RESTATED


LOAN AND SECURITY AGREEMENT


 


AMENDMENT NO. 3 AND CONSENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT (“this Amendment”), dated as of October 24,
2007, to that certain Amended and Restated Loan and Security Agreement dated as
of August 18, 2005 (as heretofore amended and as further amended, restated,
supplemented or otherwise modified from time to time, the “Loan Agreement”)
among the lending institutions party thereto from time to time (each a “Lender”
and collectively the “Lenders”), Ahern Rentals, Inc. (the “Borrower”),
each of the Borrower’s subsidiaries party thereto from time to time that become
borrowers thereunder with the prior written consent of all the Lenders, Bank of
America, N.A., in its capacity as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”), Wachovia Bank, National
Association, as collateral agent for the Lenders (in such capacity, the “Collateral
Agent”), and each of the other Obligated Parties (as defined therein) party
thereto from time to time.


 


WHEREAS, the Borrower, the Lenders, the Administrative
Agent and the Collateral Agent desire to amend certain provisions of the Loan
Agreement;


 


NOW, THEREFORE, subject to the condition precedent set
forth in Section 4 hereof, the Borrower, the Lenders, the Administrative
Agent and the Collateral Agent hereby agree as follows:


 


SECTION 1.                                CAPITALIZED TERMS. Capitalized terms used but not defined herein shall
have the respective meanings set forth in the Loan Agreement.


 


SECTION 2.                                AMENDMENTS TO LOAN AGREEMENT.


 


2.1                                 Section
1.1 of the Loan Agreement is hereby amended by adding the following proviso
to the end of the definition of “Fixed Charge Coverage Ratio”:


 


“; provided that for each Test Period
with respect to a Trigger Event, Fixed Charges shall be determined without
giving effect to clauses (d) and (e) of such definition if Suppressed
Availability is in excess of $50,000,000 as of the report date of the Borrowing
Base Certificate most recently delivered on or prior to (i) with respect to the
Test Period described in clause (x) of the definition of Test Period, the date
on which such Trigger Event occurred and (ii) with respect to each Test
Period thereafter ending prior to or during the Trigger Event Compliance Period
for such Trigger Event, the date of delivery of the Compliance Certificate
detailing


 





















 


the calculation of the Fixed Charge Coverage
Ratio for such Test Period”


 


2.2                                 Section
1.1 of the Loan Agreement is hereby further amended by deleting the
definition of “Maximum Revolver Amount” and replacing it with the following:


 


“‘Maximum Revolver Amount’ means
$300,000,000 as such amount shall be increased by the aggregate amount of
Incremental Commitments, if any, and as reduced in accordance with Section
4.3(f).”


 


2.3                                 Section
1.1 of the Loan Agreement is hereby further amended by adding the following
definition of “Suppressed Availability” in the appropriate alphabetical order:


 


“‘Suppressed Availability’ means, at
any date of determination, the amount, if any, that (i) the sum of, without
duplication, (1) up to eighty-five percent (85%) of the Net Amount of Eligible
Accounts, plus (2) up to the lesser of (A) ninety-five percent (95%) of the Net
Book Value of Eligible Rental and Sale Equipment and (B) eighty-five percent
(85%) of the Net Orderly Liquidation Value of Eligible Rental and Sale
Equipment, plus (3) up to the lesser of (A) ninety-five percent (95%) of
the Net Book Value of Eligible Transportation Equipment and (B) eighty-five
percent (85%) of the Net Orderly Liquidation Value of Eligible Transportation
Equipment, plus (4) up to the lesser of (A) sixty percent (60%) of the value
(at the lower of cost, on an average cost basis, or market) of Eligible Spare
Parts Inventory and (B) eighty-five percent (85%) of the Net Orderly
Liquidation Value of Eligible Spare Parts Inventory, minus (5) the Blocked
Availability Amount minus (6) such Reserves as are established from time
to time by either or both of the Agents in its or their reasonable credit
judgment exceeds (ii) the Maximum Revolver Amount.”


 


2.4                                 Schedule
1.1(A) of the Loan Agreement is replaced with the Schedule 1.1(A)
attached hereto as Annex A.


 


SECTION 3.                                CONSENT. The Lenders hereby consent to the payment by the Borrower of dividends
to holders of Capital Stock of the Borrower in addition to Permitted
Distributions permitted under Section 8.10(a) of the Loan and Security
Agreement; provided, that (i) no Default or Event of Default shall exist at the
time of the payment of any such dividend or immediately after giving effect to
the payment thereof, (ii) such dividend is not prohibited to be paid under the
terms of any other agreement to which the Borrower is a party or by which it is
otherwise bound, (iii) all such dividends shall be paid on or prior to November
15, 2007 and (iv) the aggregate amount of such dividends shall not exceed
$3,500,000. The Borrower hereby agrees to the terms of the foregoing consent.


 


2





















 


SECTION 4.                                EFFECTIVENESS. This Amendment shall become effective on such date (the “Effective
Date”) that:


 


(1)                                  counterparts of this
Amendment executed by the Borrower, the Lenders, the Administrative Agent and
the Collateral Agent shall have been delivered to the Administrative Agent;


 


(2)                                  the Administrative
Agent shall have received the fees set forth in the letter agreements dated the
date hereof supplementing the Fee Letters;


 


(3)                                  the Agents shall have
received signed opinions of counsel for the Obligated Parties, opining as to
such matters in connection with the transactions contemplated by this Amendment
as either of the Agents may reasonably request, each such opinion to be in
form, scope, and substance satisfactory to the Agents, the Lenders, and their
respective counsel; and


 


(4)                                  the Agents shall have
received a certificate of the secretary, general partner, or comparable
authorized representative of each Obligated Party certifying that (A) the copy
of its Management Agreement attached to the certificate of its secretary,
general partner, or comparable authorized representative delivered on the
Closing Date is a true and complete copy of its Management Agreement as in
effect on the date of the certificate delivered pursuant to this subsection and
such Management Agreement has not been amended since the Closing Date, (B) a
true and complete copy of duly approved Resolutions authorizing the execution,
delivery and performance of this Amendment are attached thereto and that such
Resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) its Organizational Certificate has not been amended since
the date of the last amendment thereto shown on the certificate of good
standing from the appropriate Governmental Authority of the jurisdiction of
such Obligated Party’s formation, incorporation, or organization (as
applicable) delivered on the Closing Date, and (D) the individuals executing
this Amendment or any other document to which it is a party delivered in
connection herewith or therewith are the incumbent officers and their
signatures are as set forth thereto.


 


SECTION 5.                                COUNTERPARTS. This Amendment may be executed in counterparts, each of
which shall be an original, and all of which, taken together, shall constitute
a single instrument.


 


SECTION 6.                                GOVERNING LAW. THIS AMENDMENT SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.


 


SECTION 7.                                REFERENCES TO LOAN AGREEMENT. From and after the effectiveness of this
Amendment and the amendments contemplated hereby, all references in the Loan
Agreement to “this Agreement”, “hereof”, “herein”, and similar terms shall mean
and refer


 


3





















 


to the Loan Agreement, as amended and modified by this Amendment, and
all references in other documents to the Loan Agreement shall mean such
agreement as amended and modified by this Amendment.


 


SECTION 8.                                RATIFICATION AND CONFIRMATION. The Loan Agreement is hereby ratified and
confirmed and, except as herein agreed, remains in full force and effect. The
Borrower represents and warrants that (i) all representations and warranties
contained in the Loan Documents are correct in all material respects with the
same effect as though such representations and warranties had been made on and
as of the date hereof (except to the extent that such representations or
warranties expressly related to a specified prior date, in which case such representations
and warranties shall be correct in all material respects as of such specified
prior date), (ii) there exists no Default or Event of Default and (iii) since
the Closing Date, no event has occurred, and no circumstances exist, that have
resulted in, or could reasonably be expected to result in, a Material Adverse
Effect.


 


SECTION 9.                                SETTLEMENT OF OUTSTANDING REVOLVING LOANS. Notwithstanding Section 13.2 of
the Loan Agreement, the Agents, the Lenders and the Borrower hereby agree that
the Administrative Agent will effect a settlement on or about the Effective
Date of all outstanding Revolving Loans among the Lenders that will reflect the
adjustments to the Commitments of certain of the Lenders resulting from the
replacement of Schedule 1.1(A) to the Loan Agreement (Commitments) with a new
schedule as contemplated by Section 2.4 of this Amendment such that immediately
after giving effect to such settlement each Lender shall have a Pro Rata Share
of the outstanding Revolving Loans. Any interest, fees and other payments
accrued to the date of such settlement with respect to the interests and
obligations of any Revolving Loans of a Lender transferred by such Lender in
accordance with such settlement shall be for the account of the transferring
Lender. Any interest, fees and other payments accrued on and after the date of
such settlement with respect to the interests and obligations acquired by a
Lender hereunder as a result of such settlement shall be for the account of the
acquiring Lender. Each Lender agrees to cooperate with the Administrative Agent
in effecting such settlement (including, without limitation, promptly paying to
the Administrative Agent a sum equal to the amount, if any, of Revolving Loans
transferred to such Lender as a result of such settlement).


 


[Remainder of page
intentionally left blank]


 


4

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed by their respective authorized officers as
of the day and year first above written.


 


	
   

  	
  OBLIGATED PARTIES:

  	 

	
   

  	
   

  	 

	
   

  	
  AHERN RENTALS, INC.

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  /s/ Howard Brown

  	
   

  	 

	
   

  	
   

  	
  Name: Howard Brown

  	 

	
   

  	
   

  	
  Title: Chief Financial Officer

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N. A.,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Scalzitti

  	
   

  
	
   

  	
   

  	
  Name: Robert Scalzitti

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  COLLATERAL AGENT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. B. Laughton

  	
   

  
	
   

  	
   

  	
  Name: D. B. Laughton

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Scalzitti

  	
   

  
	
   

  	
   

  	
  Name: Robert Scalzitti

  
	
   

  	
   

  	
  Title: Vice President

  
									



 

















 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. B. Laughton

  	
   

  
	
   

  	
   

  	
  Name: D. B. Laughton

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris Monler

  	
   

  
	
   

  	
   

  	
  Name: Chris Monler

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thanwantie Somar

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Thanwantie Somar

  	
   

  
	
   

  	
   

  	
  Title: Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMERICA BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Foley

  	
   

  
	
   

  	
   

  	
  Name: Brian Foley

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE CIT GROUP/BUSINESS CREDIT, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jang Kim

  	
   

  
	
   

  	
   

  	
  Name: Jang Kim

  
	
   

  	
   

  	
  Title: Vice President

  
							



 

















 


	
   

  	
  CF BLACKBURN LLC

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  GMAC COMMERCIAL FINANCE LLC, as

  	 

	
   

  	
   

  	
  Servicer

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  /s/ Christopher Gauch

  	
   

  
	
   

  	
   

  	
  Name: Christopher Gauch

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	 

	
   

  	
  BANK OF ARIZONA N.A.

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  /s/ Ryan A. Watson

  	
   

  
	
   

  	
   

  	
  Name: Ryan A. Watson

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	 

	
   

  	
  BANK MIDWEST, N.A.

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
  /s/ V. Cramer Hass

  	
   

  
	
   

  	
   

  	
  Name: V. Cramer Hass

  
	
   

  	
   

  	
  Title: Vice President

  
					



 

















 


ANNEX A


 


Schedule
1.1.(A)


Commitments


 




	
  Lender

  	
   

  	
  Commitment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  Wachovia Bank, National Association

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  KeyBank National Association

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  PNC Bank, National Association

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Comerica Bank

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  The CIT Group/Business Credit, Inc.

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  CF Blackburn LLC

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
  Bank of Arizona N.A.

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  Bank Midwest, N.A.

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
  300,000,000