Exhibit 4.1


 




 





 


AHERN RENTALS, INC.


 


9 1/4% SENIOR SECURED NOTES DUE 2013


 






 


FIRST SUPPLEMENTAL INDENTURE


 


Dated as of December 23, 2009


 






 


WELLS
FARGO BANK, N.A.


 


Trustee


 




 





 

















 


FIRST
SUPPLEMENTAL INDENTURE, dated as of December 23, 2009, between Ahern Rentals, Inc.,
a corporation duly organized and existing under the laws of the State of Nevada
(“Ahern Rentals”), and Wells Fargo Bank, N.A., a national banking association
(the “Trustee”), as Trustee under the indenture referred to below.


 


RECITALS


 


WHEREAS,
Ahern Rentals has heretofore executed and delivered to the Trustee an indenture
(the “Indenture”), dated as of August 18, 2005, providing for the issuance
of 91⁄4% Senior Secured Notes due 2013 (the “Notes”).


 


WHEREAS,
Section 9.02 of the Indenture provides that Ahern Rentals and the Trustee
may amend or supplement the Indenture with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding voting as a
single class, and when authorized by a resolution of Ahern Rentals’s Board of
Directors.


 


WHEREAS,
the Holders of greater than a majority in principal amount of the Notes
outstanding, pursuant to a consent solicitation dated December 7, 2009, as
supplemented, have consented to the amendment of the Indenture as provided
herein.


 


WHEREAS,
Ahern Rentals has been authorized by resolution of the Board of Directors to
enter into this First Supplemental Indenture.


 


WHEREAS,
pursuant to Section 9.02 of the Indenture, the Trustee is authorized to
execute and deliver this First Supplemental Indenture.


 


WHEREAS,
all things necessary to make this First Supplemental Indenture a valid
agreement of Ahern Rentals, in accordance with its terms, have been done.


 


NOW,
THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:


 


For
and in consideration of the premises, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:


 


1.             Amendment
to the Indenture.


 


a.             Definitions.  The definition of “Priority Lien
Debt” in Section 1.01 of the Indenture is hereby amended and restated to
read in its entirety as follows:


 


“‘Priority Lien Debt’ means:


 


(1)           Indebtedness
under the Credit Agreement that was permitted to be incurred and secured under
each applicable Secured Debt Document (or as to which the lenders under the
Credit Agreement (or the Credit Agreement Agent) obtained an Officers’
Certificate (or a representation or warranty is made by Ahern Rentals to such
lenders) at the time of incurrence to the effect that such Indebtedness was
permitted to be incurred and secured by all applicable Secured Debt Documents);


 

















 


(2)           Indebtedness
under any other Credit Facility that is secured equally and ratably with the
Credit Agreement by a Priority Lien that was permitted to be incurred and so
secured under each applicable Secured Debt Document; provided, in the case of
any Indebtedness referred to in this clause (2), that:


 


(a)           on or before the date on which such Indebtedness is
incurred by Ahern Rentals or the applicable Restricted Subsidiary, such
Indebtedness is designated by Ahern Rentals, in an Officers’ Certificate
delivered to each representative of the Priority Debt and the Collateral
Trustee, as ‘Priority Lien Debt’ for the purposes of the Secured Debt
Documents;


 


(b)           such Indebtedness is governed by a credit agreement
or other agreement that includes a Lien Priority Confirmation; and


 


(c)           all requirements set forth in the Intercreditor
Agreement as to the confirmation, grant or perfection of the Priority Lien
Collateral Agent’s Lien to secure such Indebtedness or Obligations in respect
thereof are satisfied (and the satisfaction of such requirements and the other
provisions of this clause (c) will be conclusively established if Ahern
Rentals delivers to the Collateral Trustee an Officers’ Certificate stating
that such requirements and other provisions have been satisfied and that such
Indebtedness is ‘Priority Lien Debt’); and


 


(3)           Hedging
Obligations incurred to hedge or manage interest rate risk with respect to
Priority Lien Debt; provided that:


 


(a)           such Hedging Obligations are secured by a Priority
Lien on all of the assets and properties that secure Indebtedness under the
Credit Facility in respect of which such Hedging Obligations are incurred; and


 


(b)           such Priority
Lien is senior to or on a parity with the Priority Liens securing Indebtedness
under the Credit Facility in respect of which such Hedging Obligations are
incurred.”


 


b.             Section 4.09.  Section 4.09(b)(1) of
the Indenture is hereby amended and restated to read in its entirety as
follows:


 


“(1)            the incurrence by Ahern
Rentals and any of its Restricted Subsidiaries of additional Indebtedness and
letters of credit under Credit Facilities in an aggregate principal amount at
any one time outstanding under this clause (1) (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of Ahern Rentals and its Restricted Subsidiaries thereunder) not to
exceed the greater of (a) $396.0 million or (b) the sum of (I) 85%
of accounts receivable, plus (II) the lesser of (A) 85% net orderly
liquidation value of rental and sale equipment and other equipment (including
transportation equipment but excluding aircraft) and (B) 95% of net book
value of rental and sale equipment and other equipment (including
transportation equipment but excluding aircraft), plus (III) the lesser of
(A) 85% of net orderly liquidation value of spare parts and merchandise
inventory and (B) 60% of net book value of spare parts and merchandise
inventory, in the case of each of (a) and (b) less the 


 

















 


aggregate amount of all Net Proceeds of Asset Sales
applied by Ahern Rentals or any of its Restricted Subsidiaries since the date
of this Indenture to repay any term Indebtedness under a Credit Facility or to
repay any revolving credit Indebtedness under a Credit Facility and effect a
corresponding commitment reduction thereunder pursuant to Section 4.10;”


 


2.                Effectiveness.  This First Supplemental Indenture will become
operative and binding upon each of Ahern Rentals, the Trustee and the holders
of the Notes as of the day and year first above written.


 


3.                Reference to and Effect on the Indenture.  On and after the operative date of this First
Supplemental Indenture, each reference in the Indenture to “this Indenture,” “hereunder,”
“hereof,” or “herein” shall mean and be a reference to the Indenture as
supplemented by this First Supplemental Indenture unless the context otherwise
requires.  Except as specifically amended
above, the Indenture shall remain in full force and effect and is hereby
ratified and confirmed.


 


4.                Governing
Law.  THE INTERNAL
LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS FIRST
SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.


 


5.                Defined
Terms. 
Unless otherwise indicated, capitalized terms used herein and not
defined herein shall have the respective meanings given such terms in the
Indenture.


 


6.                Trustee Disclaimer.  The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this First Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by Ahern Rentals.  This disclaimer does not apply to the third
recital hereof to the extent that it relates to the Trustee’s obligations under
the Tabulation Agreement, dated December 7, 2009, between the Trustee and
Ahern Rentals.


 


7.               Trust
Indenture Act Controls.  If any provision of this First Supplemental
Indenture limits, qualifies or conflicts with another provision that is
required to be included in this First Supplemental Indenture or the Indenture
by the Trust Indenture Act of 1931, as amended, as in force as of the date that
this First Supplemental Indenture is executed, the provisions required by such
Trust Indenture Act shall control.


 


8.               Counterparts
and Method of Execution.  The parties may sign any
number of copies of this First Supplemental Indenture.  Each signed copy shall be an original, but
all of them together represent the same agreement.


 


9.               Effect of Headings.  The Section headings herein are for
convenience only and shall not affect the construction hereof.


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused this First Supplemental Indenture to be duly
executed, all as of the date first above written.


 


	
  Dated as of
  December 23, 2009

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AHERN RENTALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Howard Brown

  
	
   

  	
   

  	
  Howard Brown

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, N.A.,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jayne Sillman

  
	
   

  	
   

  	
  Authorized Signatory