EXHIBIT 4.1




 


EXECUTION
COPY


 





 


 


NEFF RENTAL LLC,


 


NEFF FINANCE CORP.,


 


the GUARANTORS named herein


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION, AS
TRUSTEE


 










 


INDENTURE


 


Dated as of July 8, 2005


 










 


111⁄4% Second Priority


Senior Secured Notes due 2012


 










 




 





 





















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.03; 7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  12.03

  
	
   

  	
  (c)

  	
   

  	
  12.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)

  	
   

  	
  7.06; 7.07

  
	
   

  	
  (c)

  	
   

  	
  7.06; 12.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
  4.03; 12.05

  
	
   

  	
  (c)(1)

  	
   

  	
  12.04

  
	
   

  	
  (c)(2)

  	
   

  	
  12.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  10.05

  
	
   

  	
  (e)

  	
   

  	
  12.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.02

  
	
   

  	
  (b)

  	
   

  	
  7.05; 12.02

  
	
   

  	
  (c)

  	
   

  	
  7.02

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
  (a)(last sentence)

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  2.07

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  12.01

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  12.01

  



 










N.A.
means not applicable.


*                 This Cross-Reference Table is not part of
this Indenture.


 





















 


TABLE OF CONTENTS


 


	
  Article 1

  	
   

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
   

  
	
  SECTION 1.02.

  	
  Other Definitions

  	
   

  
	
  SECTION 1.03.

  	
  Trust Indenture Act Definitions

  	
   

  
	
  SECTION 1.04.

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 2

  	
   

  
	
   

  	
   

  	
   

  
	
  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Form and Dating

  	
   

  
	
  SECTION 2.02.

  	
  Execution and Authentication

  	
   

  
	
  SECTION 2.03.

  	
  Registrar and Paying Agent

  	
   

  
	
  SECTION 2.04.

  	
  Paying Agent to Hold Money in Trust

  	
   

  
	
  SECTION 2.05.

  	
  Holder Lists

  	
   

  
	
  SECTION 2.06.

  	
  Transfer and Exchange

  	
   

  
	
  SECTION 2.07.

  	
  Replacement Notes

  	
   

  
	
  SECTION 2.08.

  	
  Outstanding Notes

  	
   

  
	
  SECTION 2.09.

  	
  Treasury Notes

  	
   

  
	
  SECTION 2.10.

  	
  Temporary Notes

  	
   

  
	
  SECTION 2.11.

  	
  Cancellation

  	
   

  
	
  SECTION 2.12.

  	
  CUSIP Numbers

  	
   

  
	
  SECTION 2.13.

  	
  Issuance of Additional Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 3

  	
   

  
	
   

  	
   

  	
   

  
	
  REDEMPTION AND
  PREPAYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Notices to Trustee

  	
   

  
	
  SECTION 3.02.

  	
  Selection of Notes to Be Redeemed

  	
   

  
	
  SECTION 3.03.

  	
  Notice of Redemption

  	
   

  
	
  SECTION 3.04.

  	
  Effect of Notice of Redemption

  	
   

  
	
  SECTION 3.05.

  	
  Deposit of Redemption Price

  	
   

  
	
  SECTION 3.06.

  	
  Notes Redeemed in Part

  	
   

  
	
  SECTION 3.07.

  	
  Optional Redemption

  	
   

  
	
  SECTION 3.08.

  	
  Mandatory Redemption

  	
   

  
	
  SECTION 3.09.

  	
  Offer to Purchase by Application of Net
  Proceeds Offer Amount

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 4

  	
   

  
	
   

  	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Payment of Notes

  	
   

  



 





















 


	
  SECTION 4.02.

  	
  Maintenance of Office or Agency

  	
   

  
	
  SECTION 4.03.

  	
  Reports to Holders

  	
   

  
	
  SECTION 4.04.

  	
  Compliance Certificate

  	
   

  
	
  SECTION 4.05.

  	
  Payment of Taxes and Other Claims

  	
   

  
	
  SECTION 4.06.

  	
  Stay, Extension and Usury Laws

  	
   

  
	
  SECTION 4.07.

  	
  Limitation on Restricted Payments

  	
   

  
	
  SECTION 4.08.

  	
  Limitation on Dividend and Other Payment
  Restrictions Affecting Restricted Subsidiaries

  	
   

  
	
  SECTION 4.09.

  	
  Limitation on Incurrence of Additional
  Indebtedness

  	
   

  
	
  SECTION 4.10.

  	
  Limitation on Asset Sales

  	
   

  
	
  SECTION 4.11.

  	
  Limitation on Transactions with Affiliates

  	
   

  
	
  SECTION 4.12.

  	
  Limitation on Liens

  	
   

  
	
  SECTION 4.13.

  	
  Conduct of Business

  	
   

  
	
  SECTION 4.14.

  	
  Corporate Existence

  	
   

  
	
  SECTION 4.15.

  	
  Offer to Repurchase upon Change of Control

  	
   

  
	
  SECTION 4.16.

  	
  Impairment of Security Interest

  	
   

  
	
  SECTION 4.17.

  	
  After-Acquired Property

  	
   

  
	
  SECTION 4.18.

  	
  Future Guarantees by Subsidiaries

  	
   

  
	
  SECTION 4.19.

  	
  Limitation on Sale and Leaseback
  Transactions

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 5

  	
   

  
	
   

  	
   

  	
   

  
	
  SUCCESSORS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Merger, Consolidation and Sale of Assets

  	
   

  
	
  SECTION 5.02.

  	
  Successor Corporation Substituted

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 6

  	
   

  
	
   

  	
   

  	
   

  
	
  DEFAULTS AND
  REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Events of Default

  	
   

  
	
  SECTION 6.02.

  	
  Acceleration

  	
   

  
	
  SECTION 6.03.

  	
  Other Remedies

  	
   

  
	
  SECTION 6.04.

  	
  Waiver of Past Defaults

  	
   

  
	
  SECTION 6.05.

  	
  Control by Majority

  	
   

  
	
  SECTION 6.06.

  	
  Limitation on Suits

  	
   

  
	
  SECTION 6.07.

  	
  Rights of Holders of Notes to Receive
  Payment

  	
   

  
	
  SECTION 6.08.

  	
  Collection Suit by Trustee

  	
   

  
	
  SECTION 6.09.

  	
  Trustee May File Proofs of Claim

  	
   

  
	
  SECTION 6.10.

  	
  Priorities

  	
   

  
	
  SECTION 6.11.

  	
  Undertaking for Costs

  	
   

  
	
  SECTION 6.12.

  	
  Restoration of Rights and Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 7

  	
   

  
	
   

  	
   

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  General

  	
   

  
	
  SECTION 7.02.

  	
  Certain Rights of Trustee

  	
   

  
	
  SECTION 7.03.

  	
  Individual Rights of Trustee

  	
   

  



 


ii





















 


	
  SECTION 7.04.

  	
  Trustee’s Disclaimer

  	
   

  
	
  SECTION 7.05.

  	
  Notice of Defaults

  	
   

  
	
  SECTION 7.06.

  	
  Reports by Trustee to Holders of the Notes

  	
   

  
	
  SECTION 7.07.

  	
  Compensation and Indemnity

  	
   

  
	
  SECTION 7.08.

  	
  Replacement of Trustee

  	
   

  
	
  SECTION 7.09.

  	
  Successor Trustee by Merger, etc.

  	
   

  
	
  SECTION 7.10.

  	
  Eligibility; Disqualification

  	
   

  
	
  SECTION 7.11.

  	
  Preferential Collection of Claims Against
  Issuers

  	
   

  
	
  SECTION 7.12.

  	
  Note Security Documents

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 8

  	
   

  
	
   

  	
   

  	
   

  
	
  LEGAL
  DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  SECTION 8.01.

  	
  Option to Effect Legal Defeasance or
  Covenant Defeasance

  	
   

  
	
  SECTION 8.02.

  	
  Legal Defeasance and Discharge

  	
   

  
	
  SECTION 8.03.

  	
  Covenant Defeasance

  	
   

  
	
  SECTION 8.04.

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  
	
  SECTION 8.05.

  	
  Deposited Money and Government Securities
  to Be Held in Trust; Other Miscellaneous Provisions  

  	
   

  
	
  SECTION 8.06.

  	
  Satisfaction and Discharge

  	
   

  
	
  SECTION 8.07.

  	
  Repayment to the Issuers

  	
   

  
	
  SECTION 8.08.

  	
  Reinstatement

  	
   

  
	
  SECTION 8.09.

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 9

  	
   

  
	
   

  	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Without Consent of Holders of Notes

  	
   

  
	
  SECTION 9.02.

  	
  With Consent of Holders of Notes

  	
   

  
	
  SECTION 9.03.

  	
  Compliance with Trust Indenture Act

  	
   

  
	
  SECTION 9.04.

  	
  Revocation and Effect of Consents

  	
   

  
	
  SECTION 9.05.

  	
  Notation on or Exchange of Notes

  	
   

  
	
  SECTION 9.06.

  	
  Trustee to Sign Amendments, etc.

  	
   

  
	
  SECTION 9.07.

  	
  Payment for Consent

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 10

  	
   

  
	
   

  	
   

  	
   

  
	
  NOTE SECURITY
  DOCUMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Collateral and Note Security Documents

  	
   

  
	
  SECTION 10.02.

  	
  Recordings and Opinions

  	
   

  
	
  SECTION 10.03.

  	
  Release of Collateral

  	
   

  
	
  SECTION 10.04.

  	
  Permitted Releases Not To Impair Lien;
  Trust Indenture Act Requirements

  	
   

  
	
  SECTION 10.05.

  	
  Certificates of the Trustee

  	
   

  
	
  SECTION 10.06.

  	
  Suits To Protect the Collateral

  	
   

  
	
  SECTION 10.07.

  	
  Authorization of Receipt of Funds by the
  Trustee Under the Note Security Documents

  	
   

  
	
  SECTION 10.08.

  	
  Purchaser Protected

  	
   

  
	
  SECTION 10.09.

  	
  Powers Exercisable by Receiver or Trustee

  	
   

  



 


iii





















 


	
  SECTION 10.10.

  	
  Release Upon Termination of the Issuers’
  Obligations

  	
   

  
	
  SECTION 10.11.

  	
  Parity Junior Lien Collateral Agent

  	
   

  
	
  SECTION 10.12.

  	
  Designations

  	
   

  
	
  SECTION 10.13.

  	
  Relative Rights

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 11

  	
   

  
	
   

  	
   

  	
   

  
	
  GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Guarantee

  	
   

  
	
  SECTION 11.02.

  	
  Limitation on Guarantor Liability

  	
   

  
	
  SECTION 11.03.

  	
  Execution and Delivery of Guarantee

  	
   

  
	
  SECTION 11.04.

  	
  Guarantors May Consolidate, etc., on
  Certain Terms

  	
   

  
	
  SECTION 11.05.

  	
  Releases Following Certain Events

  	
   

  
	
   

  	
   

  	
   

  
	
  Article 12

  	
   

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
  Trust Indenture Act Controls

  	
   

  
	
  SECTION 12.02.

  	
  Notices

  	
   

  
	
  SECTION 12.03.

  	
  Communication by Holders of Notes with
  Other Holders of Notes

  	
   

  
	
  SECTION 12.04.

  	
  Certificate and Opinion as to Conditions
  Precedent

  	
   

  
	
  SECTION 12.05.

  	
  Statements Required in Certificate or
  Opinion

  	
   

  
	
  SECTION 12.06.

  	
  Rules by Trustee and Agents

  	
   

  
	
  SECTION 12.07.

  	
  No Personal Liability of Directors,
  Officers, Employees, Stockholders and Members

  	
   

  
	
  SECTION 12.08.

  	
  Governing Law

  	
   

  
	
  SECTION 12.09.

  	
  No Adverse Interpretation of Other
  Agreements

  	
   

  
	
  SECTION 12.10.

  	
  Successors

  	
   

  
	
  SECTION 12.11.

  	
  Severability

  	
   

  
	
  SECTION 12.12.

  	
  Counterpart Originals

  	
   

  
	
  SECTION 12.13.

  	
  Table of Contents, Headings, etc.

  	
   

  
	
  SECTION 12.14.

  	
  Indenture Controls

  	
   

  



 


	
  Appendix

  	
  Rule 144A/Regulation S/IAI Appendix

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
  Exhibit A

  	
  FORM OF NOTE

  
	
  Exhibit B

  	
  FORM OF GUARANTEE NOTATION

  
	
  Exhibit C

  	
  FORM OF SUPPLEMENTAL INDENTURE

  



 


iv





















 


INDENTURE dated as of July 8,
2005, among Neff Rental LLC, a Delaware limited liability company, Neff Finance
Corp., a Delaware corporation, the Guarantors (as defined herein) and Wells
Fargo Bank, National Association, a national banking association, as Trustee.


 


Each party agrees as follows
for the benefit of the other parties and for the equal and ratable benefit of
the Holders of the Issuers’ Initial Notes, Exchange Notes and Private Exchange
Notes:


 


ARTICLE 1


 


DEFINITIONS
AND INCORPORATION BY REFERENCE


 


SECTION 1.01.                 Definitions.  As used in this Indenture, the following
terms have the meanings set forth below:


 


“ABL Credit
Facility” means the Amended and Restated Credit Agreement dated as
of July 8, 2005, among the Issuers, Neff Rental, the lenders thereto in
their capacities as lenders thereunder and General Electric Capital
Corporation, as administrative agent for the lenders and the other secured
parties thereto, together with the related documents thereto (including any
guarantee agreements and security documents), in each case, as amended,
restated, supplemented, modified, increased, renewed, refunded, replaced
(whether upon or after termination or otherwise) or refinanced (including by
means of sales of debt securities to institutional investors) in whole or in
part from time to time.


 


“ABL Facility
Agent” means, at any time, the Person serving at such time as the “Agent”
or “Administrative Agent” under the ABL Credit Facility or any other
representative then most recently designated in accordance with the applicable
provisions of the ABL Credit Facility, together with its successors in such
capacity.


 


“Acquired
Indebtedness” means (1) Indebtedness
of a Person or any of its Subsidiaries existing at the time such Person becomes
a Restricted Subsidiary of the Company or at the time it merges or consolidates
with or into the Company or any of its Restricted Subsidiaries or that is assumed
in connection with the acquisition of assets from such Person and in each case
not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary of the Company
or such acquisition, merger or consolidation and (2) Indebtedness secured
by an existing Lien encumbering any asset acquired by such specified Person.


 


“Additional
Interest” means all additional interest then owing pursuant to Section 6
of the Registration Rights Agreement.


 


“Additional
Notes” means Notes issued under this Indenture after the Issue Date
and in compliance with Sections 2.13, 4.09 and 4.12, it being understood that
any Note issued in exchange for or replacement of any Initial Note issued on
the Issue Date shall not be an Additional Note, including any such Notes issued
pursuant to a Registration Rights Agreement or pursuant to Section 2.07.


 


“Adjusted
Treasury Rate” means, with respect to any redemption date, (1) the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated “H.15(519)” or any successor publication which is published weekly
by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to
constant maturity under the caption “Treasury Constant Maturities”, for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after June 15, 2009 yields for the two
published maturities most


 


2





















 


closely
corresponding to the Comparable Treasury Issue shall be determined and the
Adjusted Treasury Rate shall be interpolated or extrapolated from such yields
on a straight line basis, rounding to the nearest month) or (2) if such
release (or any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate per year equal
to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case calculated on
the third Business Day immediately preceding the redemption date, plus 50 basis
points.


 


“Affiliate” means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified
Person.  The term “control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative of the foregoing.  Notwithstanding the foregoing, no Person
(other than the Company or any Subsidiary of the Company) in whom a
Securitization Entity makes an Investment in connection with a Qualified
Securitization Transaction shall be deemed to be an Affiliate of the Company or
any of its Subsidiaries solely by reason of such Investment.


 


“Agent”
means any Registrar, Paying Agent or co-registrar.


 


“Applicable
Premium” means with respect to a Note at any redemption date, the
greater of (1) 1.00% of the principal amount of such Note and (2) the
excess of (A) the present value at such redemption date of (i) the
redemption price of such Note on June 15, 2009 (such redemption price
being described in Section 3.07(a) exclusive of any accrued interest)
plus (ii) all required remaining scheduled interest payments due on such
Note through June 15, 2009 (but excluding accrued and unpaid interest to
the redemption date), computed using a discount rate equal to the Adjusted
Treasury Rate, over (B) the principal amount of such Note on such
redemption date.


 


“Asset
Acquisition” means (1) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company, or shall be merged
with or into or consolidated with the Company or any Restricted Subsidiary of
the Company, or (2) the acquisition by the Company or any Restricted
Subsidiary of the Company of the assets of any Person (other than a Restricted
Subsidiary of the Company) which constitute all or substantially all of the
assets of such Person or comprises any division or line of business of such
Person or any other properties or assets of such Person, other than in the
ordinary course of business.


 


“Asset Sale” means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than leases entered into in the ordinary course of
business), assignment or other transfer for value by the Company or any of its
Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any
Person other than the Company or a Restricted Subsidiary of the Company of:


 


(1)  any Capital Stock
of any Restricted Subsidiary of the Company, or


 


(2)  any other property
or assets of the Company or any Restricted Subsidiary of the Company other than
in the ordinary course of business;


 


provided, however, that Asset Sales shall not include:


 


(a)  a transaction or
series of related transactions for which the Company or its Restricted
Subsidiaries receive aggregate consideration of less than $2.5 million;


 


3





















 


(b)  the sale, lease,
conveyance, disposition or other transfer of all or substantially all of the
assets of any Issuer as permitted under Section 5.01 or any disposition
that constitutes a Change of Control;


 


(c)  the sale or
discount, in each case without recourse, of accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or collection
thereof;


 


(d)  disposals or
replacements of damaged, worn-out, surplus or obsolete equipment (including
resale of rental equipment from the rental fleet), inventory or other assets in
the ordinary course of business;


 


(e)  the sale, lease,
conveyance, disposition or other transfer by the Company or any Restricted
Subsidiary of the Company of assets or property to one or more Restricted
Subsidiaries of the Company in connection with Investments permitted under Section 4.07
or pursuant to any Permitted Investment;


 


(f)  sales of accounts
receivable and related assets (including contract rights) of the type specified
in the definition of Qualified Securitization Transaction to a Securitization
Entity for the fair market value thereof, including cash in an amount at least
equal to 75% of the fair market value thereof as determined in accordance with GAAP
(for the purposes of this clause (f), Securitization Notes shall be deemed
to be cash);


 


(g)  dispositions in
the ordinary course of business (including sales, leases or rentals of rental
fleet and equipment in the ordinary course of business);


 


(h)  foreclosures on
assets;


 


(i)  for purposes of Section 4.10
only, a disposition that constitutes a Restricted Payment (or would constitute
a Restricted Payment but for the exclusions from the definition thereof) and
that is not prohibited by Section 4.07;


 


(j)  the sale of equipment to the extent that such
equipment is exchanged for credit that is reasonably promptly applied against
the purchase price of similar replacement equipment, or the proceeds of such
sale are reasonably promptly applied to the purchase price of similar
replacement equipment; provided that
the Company or such Restricted Subsidiary receives fair market value for the
equipment sold or exchanged under this clause (j);


 


(k)  in the ordinary course of business, the
license of patents, trademarks, copyrights and know-how to third Persons;


 


(l)  the sale, transfer or other disposition of
cash or Cash Equivalents;


 


(m)  the lease or sublease of any property either (i) in
the ordinary course of business and not interfering in any material respect
with the business of the Company and its Restricted Subsidiaries, taken as a
whole, or (ii) with respect to facilities that are temporarily not in use
or pending their disposal and having a duration of not greater than
24 months; and


 


(n)  a transfer of assets or Capital Stock between
or among the Company and its Restricted Subsidiaries.


 


4





















 


“Attributable
Debt” in respect of a Sale and Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate
borne by the Notes, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale and Leaseback Transaction (including any period for which such lease has
been extended); provided, however,
that if such Sale and Leaseback Transaction results in a Capitalized Lease
Obligation, the amount of Indebtedness represented thereby will be determined
in accordance with the definition of “Capitalized Lease Obligation.”


 


“Bankruptcy
Law” means Title 11 of the United States Code entitled “Bankruptcy,”
as now and hereinafter in effect, or any successor statute, and any other similar
Federal, state or foreign bankruptcy, insolvency or receivership law.


 


“Board of
Directors” means, as to
any Person, (1) if such Person is a corporation, the board of directors of
such Person or any duly authorized committee thereof and (2) if such
Person is a limited liability company, the managing member or members or any
controlling committee of managing members thereof or the Board of Directors of
any managing member that is a corporation.


 


“Board
Resolution” means, with
respect to any Person, a copy of a resolution certified by the Secretary or an
Assistant Secretary of such Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.


 


“Business Day”
means any day that is not a Legal Holiday.


 


“Capital
Stock” means:


 


(1)  with respect to
any Person that is a corporation, any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including each class
of Common Stock and Preferred Stock of such Person or options to purchase the
same; and


 


(2)  with respect to
any Person that is not a corporation, any and all partnership or other equity
interests of such Person.


 


“Capitalized
Lease Obligation” means, as to any
Person, the obligations of such Person under a lease that are required to be
classified and accounted for as capital lease obligations under GAAP.  For purposes of this definition, the amount
of such obligations at any date shall be the capitalized amount of such
obligations at such date, determined in accordance with GAAP.


 


“Cash
Equivalents” means:


 


(1)  United States
dollars and cash deposit accounts;


 


(2)  marketable direct
obligations issued by, or unconditionally guaranteed by, the United States Government
or issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof;


 


(3)  marketable direct
obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either S&P
or Moody’s;


 


5





















 


(4)  commercial paper
maturing no more than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least A-2 from S&P or at least P-2
from Moody’s;


 


(5)  certificates of
deposit or bankers’ acceptances maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or any U.S.
branch of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $250.0 million;


 


(6)  repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clause (1) above entered into with any bank
meeting the qualifications specified in clause (5) above;


 


(7)  investments in
money market funds which invest substantially all their assets in securities of
the types described in clauses (1) through (6) above; and


 


(8)  in the case of any
Subsidiary organized or having its principal place of business outside the
United States, investments denominated in the currency of the jurisdiction in
which that Subsidiary is organized or has its principal place of business which
are similar to the items specified in clauses (1), (2), (3), (5), (6) and (7) above.


 


“Change of
Control” means the
occurrence of one or more of the following events:


 


(1)  any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company
(determined on a consolidated basis for the Company and the Company’s
Restricted Subsidiaries) to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a “Group”), other than to the
Permitted Holders or their Related Parties or any Permitted Group;


 


(2)  the approval by
the holders of Capital Stock of the Company of any plan or proposal for the
liquidation or dissolution of the Company (whether or not otherwise in compliance
with the provisions of this Indenture);


 


(3)  any Person or
Group (other than the Permitted Holders or their Related Parties or any
Permitted Group) shall become the owner, directly or indirectly, beneficially
or of record, of shares representing more than 50% of the aggregate ordinary
voting power represented by the issued and outstanding Capital Stock of the
Company;


 


(4)  the first day on
which a majority of the members of the Board of Directors of the Company are
not Continuing Directors; or


 


(5)  the failure at any
time by the Company to beneficially own (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, 100% of the Capital Stock of
Neff Rental (except to the extent Neff Rental is merged with or into the
Company in accordance with the terms of this Indenture).


 


“Class”
means (1) in the case of Parity Junior Lien Debt, every Series of
Parity Junior Lien Debt, taken together, and (2) in the case of Priority
Lien Debt, every Series of Priority Lien Debt, taken together.


 


6





















 


“Code” means
the Internal Revenue Code of 1986, as amended.


 


“Collateral”
means all the collateral described in the Note Security Documents (other than
the Intercreditor Agreement).


 


“Common Stock” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of such Person’s common stock, whether outstanding on the Issue
Date or issued after the Issue Date, and includes all series and classes of
such common stock.


 


“Company”
means Neff Rental LLC, a Delaware limited liability company, and its
successors.


 


“Comparable
Treasury Issue” means the United States Treasury security selected
by the Quotation Agent as having a maturity comparable to the remaining term of
the notes from the redemption date to June 15, 2009, that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of a maturity most
nearly equal to June 15, 2009.


 


“Comparable
Treasury Price” means, with respect to any redemption date, if
clause (2) of the Adjusted Treasury Rate is applicable, the average
of three, or such lesser number as is obtained by the trustee, Reference
Treasury Dealer Quotations for such redemption date.


 


“Consolidated
EBITDA” means, with respect to any
Person, for any period, an amount equal to such Person’s Consolidated Net
Income for such period increased (to the extent deducted in computing such
Consolidated Net Income) by (without
duplication):


 


(1)  all income taxes
and foreign withholding taxes of such Person and its Restricted Subsidiaries
paid or accrued in accordance with GAAP for such period;


 


(2)  Consolidated Fixed
Charges;


 


(3)  Consolidated
Noncash Charges less any noncash items increasing Consolidated Net Income for
such period (other than normal accruals in the ordinary course of business);


 


(4)  any cash charges
resulting from the Transactions that, in each case, are incurred prior to the
six-month anniversary of the Issue Date;


 


(5)  any non-capitalized
transactions costs incurred in connection with actual, proposed or abandoned
financings, acquisitions or divestitures, including, but not limited to, financing
and refinancing fees and costs incurred in connection with the Transactions;


 


(6)  actual expenses
incurred in such period related to rental equipment operating leases that
expired or were terminated during such period to the extent that the Company or
any of its Restricted Subsidiaries acquired owned equipment with an aggregate
original equipment cost equal to or greater than the aggregate original
equipment cost of the equipment leased pursuant to such operating lease
substantially concurrently with the expiration or termination of such operating
lease;


 


(7)  all extraordinary,
unusual or nonrecurring charges, gains and losses (including all restructuring
costs, litigation settlements or losses and any expense or charge related to
the


 


7





















 


repurchase of Capital Stock
or warrants or options to purchase Capital Stock) and the related tax effects
according to GAAP; and


 


(8)  any net after-tax
income or loss from discontinued operations and any net after-tax gains or
losses on disposal of discontinued operations;


 


all as determined on a
consolidated basis for such Person and its Restricted Subsidiaries in
accordance with GAAP.


 


“Consolidated
Fixed Charge Coverage Ratio” means, with
respect to any Person, the ratio of (x) Consolidated EBITDA of such Person
during the four full fiscal quarters (the “Four-Quarter Period”)
ending prior to the date of the transaction giving rise to the need to
calculate the Consolidated Fixed Charge Coverage Ratio for which financial statements
are available (the “Transaction Date”)
to (y) Consolidated Fixed Charges of such Person for the Four-Quarter
Period.  In addition to and without
limitation of the foregoing, for purposes of this definition, “Consolidated
EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving
effect on a pro forma basis for the period of such calculation to:


 


(1)  the incurrence or
repayment of any Indebtedness or the issuance of any Preferred Stock of such
Person or any of its Restricted Subsidiaries (and the application of the
proceeds thereof) giving rise to the need to make such calculation and any incurrence
or repayment of other Indebtedness or the issuance or redemption of other
Preferred Stock (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to revolving credit facilities, occurring
during the Four-Quarter Period or at any time subsequent to the last day of the
Four-Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment or issuance or redemption, as the case may be (and the
application of the proceeds thereof), had occurred on the first day of the
Four-Quarter Period; and


 


(2)  Asset Sales
(without regard to the $2.5 million limitation set forth in the definition
thereof) or Asset Acquisitions, including: (A) any Asset Acquisition
giving rise to the need to make such calculation as a result of such Person or
one of its Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness, and (B) any
Consolidated EBITDA (including in any such pro forma calculation expense and
cost reductions (in each case net of associated expenses) and other operating
improvements (in each case net of associated expenses) for such Four-Quarter
Period calculated in accordance with Regulation S-X promulgated under the
Securities Act or any other regulation or policy of the SEC related thereto)
attributable to the assets which are the subject of the Asset Acquisition or
Asset Sale and without regard to clause (4) of the definition of
Consolidated Net Income occurring during the Four-Quarter Period or at any time
subsequent to the last day of the Four-Quarter Period and on or prior to the
Transaction Date, as if such Asset Sale or Asset Acquisition (including the
incurrence or assumption of any such Acquired Indebtedness) occurred on the
first day of the Four-Quarter Period.  If
such Person or any of its Restricted Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the preceding sentence shall give
effect to the incurrence of such guaranteed Indebtedness as if such Person or
any Restricted Subsidiary of such Person had directly incurred or otherwise
assumed such other Indebtedness that was so guaranteed.


 


Furthermore, in calculating “Consolidated
Fixed Charges” for purposes of determining the denominator (but not the
numerator) of this “Consolidated Fixed Charge Coverage Ratio”:


 


8





















 


(1)  interest on
outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall
be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date; and


 


(2)  notwithstanding
clause (1) of this paragraph, interest on Indebtedness determined on
a fluctuating basis, to the extent such interest is covered by agreements
relating to Interest Swap Obligations, shall be deemed to accrue at the rate
per annum resulting after giving effect to the operation of such agreements.


 


“Consolidated
Fixed Charges” means, with
respect to any Person for any period, the sum, without duplication, of:


 


(1)  Consolidated
Interest Expense; plus


 


(2)  the product of
(x) the amount of all cash dividend payments on any series of Preferred
Stock of such Person times (y) a fraction, the numerator of which is one
and the denominator of which is one minus the then current effective
consolidated federal, state and local income tax rate of such Person, expressed
as a decimal; provided that with respect to any
series of Preferred Stock that was not paid cash dividends during such period
but that is eligible to be paid cash dividends during any period prior to the
maturity date of the Notes, cash dividends shall be deemed to have been paid
with respect to such series of Preferred Stock during such period for purposes
of this clause (2).


 


“Consolidated
Interest Expense” means, with
respect to any Person for any period, the sum of, without duplication:


 


(1)  the aggregate of
all cash and noncash interest expense with respect to all outstanding
Indebtedness of such Person and its Restricted Subsidiaries, including the net
costs associated with Interest Swap Obligations, for such period determined on
a consolidated basis in conformity with GAAP, but excluding amortization or
write-off of debt issuance costs;


 


(2)  the consolidated
interest expense of such Person and its Restricted Subsidiaries that was
capitalized during such period; and


 


(3)  the interest
component of Capitalized Lease Obligations paid, accrued or scheduled to be paid
or accrued by such Person and its Restricted Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP.


 


“Consolidated
Net Income” means, with
respect to any Person, for any period, the aggregate net income (or loss) of
such Person and its Restricted Subsidiaries for such period on a consolidated
basis, determined in accordance with GAAP and without any deduction in respect
of Preferred Stock dividends but , in the case of the Company, reduced by the
amount of Restricted Payments made pursuant to Section 4.07(b)(11); provided, however, that (A) such Restricted Payments in
respect of Tax Payments shall only reduce Consolidated Net Income to the extent
that provision for the corresponding income tax liabilities has not already
been included in the calculation of Consolidated Net Income and (B) such
Restricted Payments in respect of general corporate and overhead expenses shall
only reduce Consolidated Net Income to the extent not already deducted in
computing Consolidated Net Income; provided  further, however, that there shall not be included in such
Consolidated Net Income:


 


9





















 


(1)  gains and losses
from Asset Sales (without regard to the $2.5 million limitation set forth in the
definition thereof) and the related tax effects according to GAAP;


 


(2)  gains and losses
due solely to fluctuations in currency values and the related tax effects
according to GAAP;


 


(3)  the net income (or
loss) of any Person acquired in a pooling of interests transaction accrued
prior to the date it becomes a Restricted Subsidiary of the referent Person or
is merged or consolidated with or into such Person or any Restricted Subsidiary
of such Person;


 


(4)  the net income of
any Restricted Subsidiary of the referent Person to the extent that the
declaration of dividends or similar distributions by that Restricted Subsidiary
of that income is prohibited by contract, operation of law or otherwise;


 


(5)  the net loss of
any Person, other than a Restricted Subsidiary of the referent Person;


 


(6)  the net income of
any Person, other than a Restricted Subsidiary of the referent Person, except
to the extent of cash dividends or distributions paid to the referent Person or
a Restricted Subsidiary of the referent Person by such Person;


 


(7)  in the case of a
successor to the referent Person by consolidation or merger or as a transferee
of the referent Person’s assets, any earnings of the successor corporation
prior to such consolidation, merger or transfer of assets;


 


(8)  any noncash
compensation charges or gains, including any such charges or gains arising from
stock options, restricted stock grants or other equity incentive programs;


 


(9)  the cumulative
effect of a change in accounting principles;


 


(10)  any noncash
goodwill or other intangible asset impairment charges incurred subsequent to
the Issue Date resulting from the application of Financial Accounting Standards
Board Statement Nos. 141 and 142 or any other noncash asset impairment charges
incurred subsequent to the Issue Date resulting from the application of
Financial Accounting Standards Board Statement No. 144; and


 


(11)  any gain on the sale of equipment to the
extent such equipment was the subject of an asset impairment, other charge or
writedown in value by the Company or any of its Restricted Subsidiaries in a
prior fiscal period to the extent such asset impairment, other charge or
writedown was excluded from Consolidated Net Income by operation of clause (10) of
this definition.


 


“Consolidated
Noncash Charges” means, with
respect to any Person, for any period, the aggregate depreciation, amortization
(excluding amortization expense attributable to a prepaid expense item that was
paid in cash in a prior period) and other noncash charges and expenses of such
Person and its Restricted Subsidiaries reducing Consolidated Net Income of such
Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such noncash charges
to the extent that they represent an accrual of or a reserve for cash
expenditures or payments in any future period). 
Notwithstanding the foregoing, accruals in respect of payables in the
ordinary course of business shall be deemed not to constitute a “Consolidated
Noncash Charge.”


 


10





















 


“Continuing
Director” means, as of
any date of determination, any member of the Board of Directors of the Company
who:


 


(1)  was a member of
such Board of Directors on the Issue Date; or


 


(2)  was nominated for
election or elected to such Board of Directors by any of the Permitted Holders
or with the approval of a majority of the Continuing Directors who were members
of such Board at the time of such nomination or election or the applicable Guarantor,
as the case may be.


 


“Corporate
Trust Office of the Trustee” shall be at the address of the Trustee
specified in Section 12.02 or such other address as to which the Trustee
may give notice to the Company.


 


“Credit
Facilities” means (1) the
ABL Credit Facility and (2) one or more other debt facilities or
commercial paper facilities with banks, institutional lenders or other Persons
providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special
purpose entities formed to borrow from such lenders against such receivables) or
letters of credit, bank guarantees or banker’s acceptances, in each case, as
amended, restated, supplemented, modified, increased, renewed, refunded,
replaced (whether upon or after termination or otherwise) or refinanced
(including by means of sales of debt securities to institutional investors) in
whole or in part from time to time.


 


“Currency
Agreement” means any
foreign exchange contract, currency swap agreement or other similar agreement
or arrangement designed to protect the Company or any Restricted Subsidiary of
the Company against fluctuations in currency values.


 


“Default” means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.


 


“Definitive
Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with the Appendix, in the form of Exhibit A
except that such Note shall not bear the Global Note Legend and shall not have
the “Schedule of Exchanges of Interests in the Global Note” attached
thereto.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03 as the Depositary with
respect to the Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this Indenture.


 


“Designated
Noncash Consideration” means any
noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Sale that is designated as Designated
Noncash Consideration pursuant to an Officer’s Certificate that is delivered to
the Trustee and executed by the principal executive officer or the principal
financial officer of the Company or such Restricted Subsidiary at the time of
such Asset Sale.  Any particular item of
Designated Noncash Consideration will cease to be considered to be outstanding
once it has been sold for cash or Cash Equivalents.  At the time of receipt of any Designated
Noncash Consideration, the Company shall deliver an Officer’s Certificate to
the Trustee which shall state the fair market value of such Designated Noncash
Consideration and shall state the basis of such valuation, which shall be a
report of an Independent Qualified Party with respect to the receipt in one
transaction or a series of related transactions, of Designated Noncash
Consideration with a fair market value in excess of $15.0 million.


 


11





















 


“Discharge of Priority Lien Obligations” means, subject to reinstatement of
previously repaid Priority Lien Obligations as provided in the Intercreditor
Agreement, the occurrence of all of the following:


 


(1)  termination or
expiration of all commitments to extend credit that would constitute Priority
Lien Debt;


 


(2)  payment in full in
cash of the principal of and interest and premium (if any) on all Priority Lien
Debt (other than any undrawn letters of credit);


 


(3)  discharge or cash
collateralization (to the extent of any letters of credit constituting Priority
Lien Debt (A) in the case of the ABL Credit Facility, in the manner and
pursuant to the procedures specified in the ABL Credit Facility or if not so
specified at 105% of the aggregate undrawn amount and (B) in the case of
any other Priority Lien Document, at the lesser of the amount specified in such
document and 105% of the aggregate undrawn amount) of all such outstanding letters
of credit constituting Priority Lien Debt; and


 


(4)  payment in full in
cash of all other Priority Lien Obligations that are outstanding and unpaid at
the time the Priority Lien Debt is paid in full in cash (other than any
obligations for taxes, costs, indemnifications, reimbursements, damages and
other liabilities in respect of which no claim or demand for payment has been
made at such time).


 


“Disqualified
Capital Stock” means that
portion of any Capital Stock which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder thereof), or upon the happening of any event, matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder thereof on or
prior to 91 days after the final maturity date of the Notes; provided, however, that
any Capital Stock that would not constitute Disqualified Capital Stock but for
provisions thereof giving holders thereof the right to require the issuer
thereof to purchase or redeem such Capital Stock upon the occurrence of an “asset
sale” or “change of control” occurring prior to 91 days following the maturity
date of the Notes shall not constitute Disqualified Capital Stock if (i) the
“asset sale” or “change of control” provisions applicable to such Capital Stock
are not more favorable to the holders of such Capital Stock than the terms applicable
to the Notes under Sections 4.10 and 4.15 and (ii) any such
requirement only becomes operative after compliance with such terms applicable
to the Notes, including the purchase of any Notes tendered pursuant
thereto.  The Company may designate any
Preferred Stock issued by the Company that otherwise would not constitute “Disqualified
Capital Stock” pursuant to this definition to be Disqualified Capital Stock for
purposes of this Indenture; provided that (1) the
Company makes such designation, by delivery of an Officer’s Certificate to the
Trustee, on the date that the Company issues such Preferred Stock and (2) the
issuance of such designated Disqualified Capital Stock complies with Section 4.09.  The amount of Disqualified Capital Stock
deemed to be outstanding at any time for purposes of this Indenture shall be
the maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Capital Stock, exclusive of accrued dividends.


 


“Domestic
Restricted Subsidiary” means any
Restricted Subsidiary of the Company that is incorporated under the laws of the
United States or any state thereof or the District of Columbia.


 


“Equity
Offering” means, in connection with any optional redemption pursuant
to Section 3.07(b), any offering of Qualified Capital Stock of the
Company, Parent or any other direct or indirect parent of the Company; provided that in the case of a Qualified Capital Stock Offering
by Parent


 


12





















 


or
any other direct or indirect parent of the Company, such parent makes a direct
or indirect contribution to the Company, or is directly or indirectly issued
Qualified Capital Stock of the Company by the Company in an amount equal to the
redemption price of the Notes to be redeemed in such redemption plus accrued
and unpaid interest thereon.


 


“Exchange Act” means the Securities Exchange Act of 1934, as amended, or
any successor statute or statutes thereto, and the rules and regulations
promulgated thereunder.


 


“Exchange
Notes” means (1) the 111⁄4% Second Priority Senior Secured Notes
due 2012 issued pursuant to this Indenture in connection with a Registered Exchange
Offer pursuant to a Registration Rights Agreement, (2) any Notes issued
upon the reissuance or transfer of any Initial Notes pursuant to an effective
Registration Statement or in reliance on Rule 144(k) under the Securities
Act or any other valid exemption from the registration requirements of the
Securities Act pursuant to which such Initial Notes are no longer required to
bear any Private Placement Legend in accordance with this Indenture and (3) Additional
Notes, if any, issued pursuant to a registration statement filed with the SEC
under the Securities Act.


 


“Exchange
Offer Registration Statement” means the Exchange Offer Registration
Statement, as defined in the Registration Rights Agreement.


 


“fair market
value” means, with respect to any asset
or property, the price which could be negotiated in an arm’s-length, free
market transaction, for cash, between a willing seller and a willing and able
buyer, neither of whom is under undue pressure or compulsion to complete the
transaction.  Fair market value shall be
determined by the Board of Directors of the Company acting reasonably and in
good faith and shall be evidenced by a Board Resolution of the Board of
Directors of the Company delivered to the Trustee; provided,
however, that for purposes of (1) Section 4.10(1) and
clause (j) of the definition of “Asset Sale,” fair market value with
respect to Asset Sales (A) of less than $7.5 million shall be
determined in good faith by senior management of the Company and (B) equal
to or greater than $7.5 million shall be determined by the Board of Directors
of the Company acting reasonably and in good faith and shall be evidenced by a
Board Resolution of the Board of Directors of the Company delivered to the
Trustee and (2) Sections 4.07 (a)(iii)(w) and (a)(iii)(y), if
the fair market value of the property or assets in question is so determined to
be in excess of $15.0 million, such determination must be confirmed by an
Independent Qualified Party.  For
purposes of determining the fair market value of Capital Stock, the value of
the Capital Stock of a Person shall be based upon such Person’s property and
assets, exclusive of goodwill or similar intangible asset.


 


“Finance
Corp.” means Neff Finance Corp., a
Delaware corporation, and its successors.


 


“Four-Quarter
Period” has the meaning specified in the definition of Consolidated
Fixed Charge Coverage Ratio.


 


“GAAP”
means generally accepted accounting principles in the United States of America
as in effect from time to time, including those set
forth in:


 


(1) the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants;


 


(2) statements and
pronouncements of the Financial Accounting Standards Board;


 


(3) such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as in effect from time to time;
and


 


13





















 


(4) the rules and
regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in periodic reports required to be
filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements
from the accounting staff of the SEC.


 


“Global Note Legend”
means the legend set forth in the Appendix which is required to be placed on
all Global Notes issued under this Indenture.


 


“Global Notes”
means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes, in the form of Exhibit A, issued in
accordance with Section 2.01, 2.06 or 2.13.


 


“Government
Securities” means direct obligations of, or obligations guaranteed
by, the United States of America, and for the payment of which the United
States pledges its full faith and credit.


 


“Grantors” means the Issuers, each Guarantor and any other
Person (if any) that grants a Lien on all or part of its assets or properties
to secure all or part of the Secured Obligations.


 


“Guarantee” means the senior guarantee of the Notes by each Guarantor.


 


“Guarantor” means Neff Rental and each other Subsidiary of the Company
(other than Finance Corp.) that incurs a Guarantee pursuant to the terms of
this Indenture; provided that upon the release
and discharge of such Restricted Subsidiary from its Guarantee in accordance
with Section 11.06, such Restricted Subsidiary shall cease to be a
Guarantor.


 


“Hedging
Agreement” means any
agreement with respect to the hedging of price risk associated with the
purchase of commodities used in the business of the Company and its Restricted
Subsidiaries.


 


“Holder”
means a Person in whose name a Note is registered.


 


“Indebtedness” means, with respect to any Person, without duplication:


 


(1)  all Obligations of
such Person for borrowed money;


 


(2)  all Obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments;


 


(3)  all Capitalized
Lease Obligations of such Person;


 


(4)  all Obligations of
such Person issued or assumed as the deferred purchase price of property and which
is deferred for six months or longer from the date of issuance or assumption,
all conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business);


 


(5)  all Obligations
for the reimbursement of any obligor on any letter of credit, banker’s
acceptance or similar credit transaction;


 


(6)  guarantees and
other contingent Obligations in respect of Indebtedness referred to in clauses (1) through
(5) above and clause (8) below;


 


14





















 


(7)  all Obligations of
any other Person of the type referred to in clauses (1) through (6) which
are secured by any Lien on any property or asset of such Person, the amount of
such Obligation being deemed to be the lesser of the fair market value of such
property or asset or the amount of the Obligation so secured;


 


(8)  all Obligations
under Interest Swap Obligations of such Person; and


 


(9)  all Disqualified
Capital Stock issued by such Person with the amount of Indebtedness represented
by such Disqualified Capital Stock being equal to the greater of its voluntary
or involuntary liquidation preference and its maximum fixed repurchase price,
but excluding accrued dividends, if any.


 


For purposes hereof, the “maximum
fixed repurchase price” of any Disqualified Capital Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant
to this Indenture, and if such price is based upon, or measured by, the fair
market value of such Disqualified Capital Stock, such fair market value shall
be determined reasonably and in good faith by the Board of Directors of the
issuer of such Disqualified Capital Stock. 
For the purposes of calculating the amount of Indebtedness of a Securitization
Entity outstanding as of any date, the face or notional amount of any interest
in receivables or equipment that is outstanding as of such date shall be deemed
to be Indebtedness but any such interests held by Affiliates of such
Securitization Entity shall be excluded for purposes of such calculation.


 


The amount of any
Indebtedness outstanding as of any date shall be:


 


(1)  the accreted value
thereof, in the case of any Indebtedness that does not require current payments
of interest; and


 


(2)  the principal
amount thereof (together with any interest thereon that is more than 30 days
past due), in the case of any other Indebtedness provided
that the principal amount of any Indebtedness that is denominated in any
currency other than United States dollars shall be the amount thereof, as determined
pursuant to the foregoing provision, converted into United States dollars at
the Spot Rate in effect on the date that Indebtedness was incurred or, if that
Indebtedness was incurred prior to the Issue Date, the Spot Rate in effect on
the Issue Date.  If such Indebtedness is
incurred to Refinance other Indebtedness denominated in a foreign currency, and
such Refinancing would cause the applicable U.S. dollar-denominated restriction
to be exceeded if calculated at the relevant Spot Rate in effect on the date of
such Refinancing, such U.S. dollar-denominated restriction shall be deemed not
to have been exceeded so long as the principal amount of such Refinancing
Indebtedness does not exceed the principal amount of such Indebtedness being
Refinanced.  The principal amount of any
Indebtedness incurred to Refinance other Indebtedness, if incurred in a
different currency from the Indebtedness being Refinanced, shall be calculated
based on the Spot Rate applicable to the currencies in which such respective Indebtedness
is denominated that is in effect on the date of such Refinancing.


 


Indebtedness shall not
include obligations of any Person (A) arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the ordinary course of
business, provided that such obligations are
extinguished within two Business Days of their incurrence, (B) resulting
from the endorsement of negotiable instruments for collection in the ordinary
course of business and consistent with past business practices and (C) under
stand-by letters of credit to the extent collateralized by cash or Cash
Equivalents.


 


15





















 


“Independent
Qualified Party” means an investment banking firm, accounting firm
or appraisal firm of national standing; provided, however, that such firm is not an Affiliate of the Company.


 


“Indenture”
means this Indenture, as amended or supplemented from time to time.


 


“Initial
Notes” means (1) $245.0 million in aggregate principal
amount of 111⁄4% Second Priority Senior Secured Notes due 2012 of the Issuers
issued on the Issue Date and (2) Additional Notes, if any, issued in a
transaction exempt from the registration requirements of the Securities Act, in
each case, to the extent such Notes are required to bear a Private Placement
Legend in accordance with this Indenture.


 


“Insolvency
or Liquidation Proceeding” means (1) any voluntary or
involuntary proceeding under any Bankruptcy Law with respect to any Grantor, (2) any
voluntary or involuntary appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for any Grantor or for a
substantial part of the property or assets of any Grantor, (3) any
voluntary or involuntary winding-up or liquidation of any Grantor or (4) a
general assignment for the benefit of creditors by any Grantor.


 


“Intercreditor
Agreement” means the intercreditor agreement dated as of July 8,
2005, among the Issuers, Neff Rental, General Electric Capital Corporation, as
credit agreement agent and as Priority Lien Collateral Agent, and Wells Fargo
Bank, National Association, as Trustee and as Parity Junior Lien Collateral Agent,
as the same may be amended, restated, supplemented, modified or replaced from
time to time.


 


“Interest
Swap Obligations” means the
obligations of any Person pursuant to any arrangement with any other Person
whereby, directly or indirectly, such Person is entitled to receive from time
to time periodic payments calculated by applying either a floating or a fixed
rate of interest on a stated notional amount in exchange for periodic payments
made by such other Person calculated by applying a fixed or a floating rate of
interest on the same notional amount and shall include interest rate swaps,
caps, floors, collars and similar agreements.


 


“Investment” means, with respect to any Person, any direct or indirect
loan or other extension of credit (including a guarantee) or capital
contribution to (by means of any transfer of cash or other property to others
or any payment for property or services for the account or use of others), or
any purchase or acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, any Person.  “Investment” shall exclude extensions of
trade credit by the Company and its Restricted Subsidiaries in accordance with
normal trade practices of the Company or such Restricted Subsidiary, as the
case may be.  If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Common
Stock of any direct or indirect Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Restricted Subsidiary
is no longer a Restricted Subsidiary of the Company, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted
Subsidiary not sold or disposed of.


 


“Iron Merger
Partnership” means Iron Merger Partnership, a Delaware general
partnership, and its successors.


 


“Issue Date”
means the date of original issue of the Notes on July 8, 2005.


 


“Issuer” means the Company or Finance Corp.


 


16





















 


“Issuers” means, collectively, the Company and Finance
Corp.


 


“Legal
Holiday” means a Saturday, a Sunday or a day on which banking
institutions in The City of New York, the city in which the principal corporate
trust office of the Trustee is located or at a place of payment are authorized
by law, regulation or executive order to remain closed.  If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.


 


“Lien”
means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, lien, charge, claim, security interest, easement or encumbrance of
any kind or nature whatsoever (including any lease or title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of, or agreement to give, any financing
statement perfecting a security interest under the Uniform Commercial Code or
comparable law of any jurisdiction).


 


“Management
Services Agreement” means the Management Services Agreement dated as
of June 3, 2005, by and among Parent, Neff Rental and Odyssey Investment
Partners, LLC.


 


“Marketable
Securities” means publicly
traded debt or equity securities that are listed for trading on a national
securities exchange and that were issued by a corporation whose debt securities
are rated in one of the three highest rating categories by either S&P or
Moody’s.


 


“Moody’s” means Moody’s Investors Service, Inc., and its
successors.


 


“Neff Rental”
means Neff Rental, Inc., a Florida corporation, and its successors.


 


“Net Cash
Proceeds” means, with
respect to any Asset Sale, the proceeds in the form of cash or Cash
Equivalents, including payments in respect of deferred payment obligations when
received in the form of cash or Cash Equivalents (other than the portion of any
such deferred payment constituting interest) received by the Company or any of
its Restricted Subsidiaries from such Asset Sale net of:


 


(1)  reasonable
out-of-pocket expenses and fees relating to such Asset Sale (including legal,
accounting and investment banking fees and sales commissions);


 


(2)  taxes paid or
payable after taking into account any reduction in consolidated tax liability
due to available tax credits or deductions and any tax sharing arrangements;
and


 


(3)  appropriate
amounts to be provided by the Company or any Restricted Subsidiary of the
Company, as the case may be, as a reserve, in accordance with GAAP, against any
liabilities associated with such Asset Sale and retained by the Company or any
Restricted Subsidiary of the Company, as the case may be, after such Asset
Sale, including sale or purchase price adjustments, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale.


 


“Note
Custodian” means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.


 


“Note Documents” means this Indenture, the Notes and the Note
Security Documents.


 


“Note Obligations” means the Notes and all other Obligations in
respect thereof.


 


17





















 


“Note Security Documents” means the
Intercreditor Agreement and all security agreements, pledge agreements,
collateral assignments, mortgages, deeds of trust, collateral agency
agreements, control agreements or other grants or transfers for security
executed and delivered by the Issuers or any other Grantor creating (or
purporting to create) a Lien upon Collateral for the benefit of the Parity
Junior Lien Collateral Agent, in each case, as amended, modified, renewed,
restated or replaced, in whole or in part, from time to time, in accordance
with its terms, this Indenture and the terms of the Intercreditor Agreement.


 


“Notes”
means the Initial Notes, the Exchange Notes and the Private Exchange Notes,
treated as a single class of securities.


 


“Obligations”
means, with respect to any Indebtedness, any principal (including reimbursement
obligations with respect to letters of credit whether or not drawn), interest
(including all interest accrued thereon after the commencement of any
Insolvency or Liquidation Proceeding at the rate, including any applicable
post-default rate, specified in (1) in the case of Priority Lien Debt, the
Priority Lien Documents or (2) in the case of other Indebtedness, the
documentation governing such Indebtedness, in each case, even if such interest
is not enforceable, allowable or allowed as a claim in such Insolvency or
Liquidation Proceeding), premium (if any), fees, indemnifications,
reimbursements, expenses and other liabilities payable under the documentation
governing such Indebtedness; provided, however,
that Obligations with respect to the Notes shall not include the fees and
indemnifications in favor of the Trustee and other third parties other than the
holders of such Notes.


 


“Offering
Circular” means the confidential offering circular dated June 30,
2005, used in connection with the issuance of Notes on the Issue Date.


 


“Officer”
means the Chairman of the Board, the President, any Vice-President, the Treasurer
or the Secretary of the Company, Finance Corp. or Neff Rental, as applicable.


 


“Officer’s
Certificate” means a certificate signed on behalf of the Company,
Finance Corp. or Neff Rental, as applicable, by one Officer of the Company,
Finance Corp. or Neff Rental, as applicable, and in the case of an Officer’s
Certificate delivered to the Trustee, a certificate that meets the requirements
of Sections 12.04 and 12.05.


 


“Opinion of
Counsel” means an opinion from legal counsel who is reasonably acceptable
to the Trustee that meets the requirements of Sections 12.04 and 12.05.  The counsel may be an employee of or counsel
to the Company, any Subsidiary of the Company or the Trustee.


 


“Parent” means Neff Corp., a Delaware corporation,
and its successors.


 


“Parity Junior Lien” means any Lien granted pursuant to any
Parity Junior Lien Security Document to the Parity Junior Lien Collateral
Agent, at any time, upon any property of any Issuer or any other Grantor to
secure Parity Junior Lien Obligations.


 


“Parity
Junior Lien Collateral Agent” means Wells Fargo and its successors
as collateral agent under this Indenture and any other Person designated as a
collateral agent with respect to any other Series of Parity Junior Lien
Debt; provided that, until such time that the
Note Obligations have been discharged or paid in full, Wells Fargo and its successors
as collateral agent under this Indenture shall be the sole authorized Person to
act as the Parity Junior Lien Collateral Agent with respect to the Note
Obligations.


 


18





















 


“Parity
Junior Lien Debt” means:


 


(1)  the Notes issued
on the Issue Date (including any related Exchange Notes and Private Exchange
Notes) and the related Guarantees; and


 


(2)  any other
Indebtedness of the Issuers or any other Grantor (including Additional Notes)
that is secured equally and ratably with the Notes by a Parity Junior Lien that
was permitted to be incurred and so secured under each applicable Secured Debt
Document; provided that such Indebtedness is (A) if
incurred by the Issuers, guaranteed by each Restricted Subsidiary of the
Company that, on the date of incurrence of such Indebtedness, is a Guarantor or
(B)  if incurred by any Issuer or any other Grantor, guaranteed by the other
Issuer and each Restricted Subsidiary of the Company that, on the date of
incurrence of such Indebtedness, is a Guarantor; and provided, further,
in the case of any Indebtedness referred to in this clause (2), that on or
before the date on which such Indebtedness is incurred by the Issuers or any
other Grantor, such Indebtedness is designated by the Company, in an Officer’s
Certificate delivered to each Parity Junior Lien Representative and the Parity
Junior Lien Collateral Agent, as “Parity Junior Lien Debt” for the purposes of
this Indenture and the Intercreditor Agreement; provided
that no Series of Secured Debt may be designated as both Parity Junior
Lien Debt and Priority Lien Debt.


 


“Parity
Junior Lien Documents” means, collectively, (a) the Note
Documents and (b) each indenture, credit agreement or other agreement
governing each other Series of Parity Junior Lien Debt and (c) the
Parity Junior Lien Security Documents.


 


“Parity
Junior Lien Obligations” means Parity Junior Lien Debt and all
Obligations in respect of Parity Junior Lien Debt.


 


“Parity
Junior Lien Representative” means:


 


(1)  in the case of the
Notes, the Parity Junior Lien Collateral Agent; and


 


(2)  in the case of any
other Series of Parity Junior Lien Debt, the trustee, agent or
representative of the holders of such Series of Parity Junior Lien Debt
who maintains the transfer register for such Series of Parity Junior Lien
Debt and (a) is appointed (as evidenced by an Officer’s Certificate
delivered to the Trustee) as a Parity Junior Lien Representative (for purposes
related to the administration of the security documents) pursuant to the
applicable indenture, credit agreement or other agreement governing such Series of
Parity Junior Lien Debt, together with its successors in such capacity, and (b) has
become a party to the Intercreditor Agreement by executing a joinder in the form
required under the Intercreditor Agreement.


 


“Parity
Junior Lien Security Documents” means the Intercreditor Agreement,
each Note Security Document and all security agreements, pledge agreements,
collateral assignments, mortgages, deeds of trust, collateral agency
agreements, control agreements, documents, instruments or other grants or
transfers for security executed and delivered by Holdings, Neff Rental or any
other Grantor creating (or purporting to create) a Lien upon Collateral for the
benefit of the Parity Junior Lien Collateral Agent, in each case, as amended,
modified, renewed, restated or replaced, in whole or in part, from time to
time, in accordance with its terms, this Indenture and the Intercreditor
Agreement.


 


“Permitted
Business” means any business
(including stock or assets) that derives a majority of its revenues from the
business engaged in by the Company and its Restricted Subsidiaries on the Issue
Date or activities that are reasonably similar, ancillary or related to, or a
reasonable extension, development or expansion of, the businesses in which the
Company and its Restricted Subsidiaries are engaged on the Issue Date.


 


19





















 


“Permitted
Group” means any group of investors
that is deemed to be a “person” (as such term is used in Section 13(d)(3) of
the Exchange Act) by virtue of the Stockholders Agreement, as the same may be
amended, modified or supplemented from time to time; provided
that no single Person (together with its Affiliates), other than the Permitted
Holders and their Related Parties, is the “beneficial owner” (as such term is
used in Section 13(d) of the Exchange Act), directly or indirectly,
of more than 50% of the voting power of the issued and outstanding Capital
Stock of the Company that is “beneficially owned” (as defined above) by such
group of investors.


 


“Permitted
Holders” means Odyssey Investment Partners, LLC and its Affiliates
(excluding Mr. J.C. Mas).  Any
Person or Permitted Group whose acquisition of beneficial ownership constitutes
a Change of Control in respect of which a Change of Control Offer is made in
accordance with the requirements of this Indenture will thereafter, together
with its Affiliates, constitute an additional Permitted Holder.


 


“Permitted
Indebtedness” means, without
duplication, each of the following:


 


(1)  Indebtedness under
the Notes (other than Additional Notes) and Indebtedness consisting of the
Guarantee of a Guarantor with respect to such Notes;


 


(2)  Indebtedness of
the Company or any of its Restricted Subsidiaries incurred pursuant to one or
more Credit Facilities; provided, however, that after giving effect to any such incurrence,
the aggregate principal amount of all Indebtedness incurred under this clause (2) and
then outstanding does not exceed the greater of (i) the lesser of (A) $225.0
million, less the aggregate amount of (x) Indebtedness of Securitization
Entities at the time outstanding and (y) the sum of all principal payments
with respect to such Indebtedness pursuant to Section 4.10(3)(A) and (B) the
sum of (x) 85% of the book value of the accounts receivable of the Company and
its Restricted Subsidiaries, (y) 90% of the net book value of the rental fleet
of the Company and its Restricted Subsidiaries and (z) 60% of the book value of
the inventory of the Company and its Restricted Subsidiaries, and (ii) the
sum of (x) 85% of the book value of the accounts receivable of the Company
and its Restricted Subsidiaries, (y) 85% of the net book value of the
rental fleet of the Company and its Restricted Subsidiaries and (z) 60% of
the book value of the inventory of the Company and its Restricted Subsidiaries;
provided, however, that if on the date
of incurrence of Indebtedness under this clause (2) after giving effect
thereto, the Indebtedness incurred under this clause (2) exceeds or would
exceed $225.0 million, then the Consolidated Fixed Charge Coverage Ratio of the
Company shall be greater than or equal to 2.0 to 1.0 if such Indebtedness is
incurred prior to July 8, 2007, or 2.25 to 1.0 if such Indebtedness is
incurred thereafter; provided further, however,
that the amount of Indebtedness permitted to be incurred pursuant to Credit
Facilities in accordance with this clause (2) shall be in addition to
any Indebtedness permitted to be incurred pursuant to Credit Facilities in
reliance on, and in accordance with, clauses (7), (13) and (15) below and Section 4.09;


 


(3)  Indebtedness of
the Company and its Restricted Subsidiaries outstanding on the Issue Date
(other than Indebtedness described in clause (1) or (2) of this
definition) reduced by the amount of any scheduled amortization payments or
mandatory prepayments when actually paid or permanent reductions thereof;


 


(4)  Interest Swap
Obligations of the Company or any of its Restricted Subsidiaries covering
Indebtedness of the Company or any of its Restricted Subsidiaries; provided that any Indebtedness to which any such Interest
Swap Obligations correspond is otherwise permitted to be incurred under this
Indenture; and provided  further
that such Interest Swap Obligations are entered into, in the judgment of the
Company, to protect the Company or any of its Restricted


 


20





















 


Subsidiaries from
fluctuations in interest rates on its outstanding Indebtedness and not for
purposes of speculation;


 


(5)  Indebtedness of
the Company or any Restricted Subsidiary of the Company under Hedging
Agreements and Currency Agreements so long as any such agreement has been
entered into in the ordinary course of business and not for purposes of
speculation;


 


(6)  the incurrence by
the Company or any of its Restricted Subsidiaries of intercompany Indebtedness
between or among the Company and any such Restricted Subsidiaries; provided, however, that:


 


(a)  if the Company or
Finance Corp. is the obligor on such Indebtedness and the aggregate principal
amount thereof exceeds $1.0 million, and the payee is a Restricted Subsidiary
of the Company that is not a Guarantor, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Notes, and


 


(b)  (i) any
subsequent issuance or transfer of Capital Stock that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary thereof, and


 


(ii)  any sale or other
transfer of any such Indebtedness to a Person that is not either the Company or
a Restricted Subsidiary thereof (other than by way of granting a Lien permitted
under this Indenture or in connection with the exercise of remedies by a
secured creditor)


 


shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be, that was not permitted by this
clause (6);


 


(7)  Indebtedness
(including Capitalized Lease Obligations) incurred by the Company or any of its
Restricted Subsidiaries to finance the purchase, lease or improvement of
property (real or personal) or equipment (whether through the direct purchase
of assets or the Capital Stock of any Person owning such assets) in an
aggregate principal amount outstanding after giving effect to that incurrence
not to exceed $10.0 million;


 


(8)  Refinancing
Indebtedness in respect of Indebtedness incurred pursuant to the proviso of Section 4.09
or pursuant to clause (1), (3), (7), (13) or (16) or this clause (8); provided, however, that
to the extent such Refinancing Indebtedness directly or indirectly Refinances
Indebtedness of a Subsidiary incurred pursuant to clause (16), such Refinancing
Indebtedness shall be incurred only by such Subsidiary; provided
further, however,
that in the case of any Refinancing Indebtedness incurred to Refinance
Indebtedness outstanding under clause (7), (13) or (16), such Refinancing
Indebtedness shall be deemed to have been incurred and to be outstanding under
such clause or clauses (7), (13) and (16), as applicable;


 


(9)  Indebtedness
consisting of any guarantee by the Company of Indebtedness of a Restricted
Subsidiary of the Company and any guarantee by any Restricted Subsidiary of the
Company of Indebtedness of the Company or any Restricted Subsidiary of the
Company; provided that (a) such Indebtedness
is permitted to be incurred under this Indenture and (b) such guarantees
are subordinated to the Notes to the same extent as the Indebtedness being
guaranteed;


 


21





















 


(10)  Indebtedness
arising from agreements of the Company or a Restricted Subsidiary of the
Company providing for indemnification, adjustment of purchase price, earn out
or other similar obligations, in each case, incurred or assumed in connection
with the acquisition or disposition of any business, assets or a Restricted
Subsidiary of the Company, other than guarantees of Indebtedness incurred by
any Person acquiring all or any portion of such business, assets or Restricted
Subsidiary for the purpose of financing such acquisition; provided
that, with respect to any such disposition, the maximum assumable liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
actually received by the Company and its Restricted Subsidiaries in connection
with such disposition;


 


(11)  obligations in respect of performance and
surety bonds and completion guarantees provided by the Company or any
Restricted Subsidiary of the Company in the ordinary course of business;


 


(12)  the incurrence by a Securitization Entity of
Indebtedness in a Qualified Securitization Transaction that is non-recourse to
the Company or any Restricted Subsidiary of the Company (except for Standard
Securitization Undertakings);


 


(13)  Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal amount which, when taken
together with all other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the date of such incurrence (other than
Indebtedness permitted by clauses (1) through (12) above, clauses (14)
through (18) below or pursuant to the proviso of Section 4.09) does not
exceed $15.0 million (which amount may, but need not, be incurred in whole or
in part under a Credit Facility);


 


(14)  Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided
that such Indebtedness is extinguished within five business days of incurrence;


 


(15)  Indebtedness of the Company or any of its
Restricted Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, issued in the
ordinary course of business of the Company or such Restricted Subsidiary,
including in order to provide security for workers’ compensation claims or
payment obligations in connection with self-insurance or similar requirements
in the ordinary course of business and other Indebtedness with respect to
workers’ compensation claims, self-insurance obligations, performance, bid and
surety and similar bonds and completion guarantees provided by the Company or
any Restricted Subsidiary of the Company in the ordinary course of business in
an aggregate amount that, when taken together with the amount of all other
Indebtedness of the Company or any of its Restricted Subsidiaries incurred
pursuant to this clause (15) that is at the time outstanding, does not exceed
$15.0 million;


 


(16)  Indebtedness of a Restricted Subsidiary of
the Company incurred and outstanding on the date such Restricted Subsidiary was
acquired by the Company in a principal amount that, when taken together with
the principal amount of all other Indebtedness incurred pursuant to this clause
(16) that is at the time outstanding, does not exceed $10.0 million; provided that such Indebtedness was incurred by such
Restricted Subsidiary prior to such acquisition by the Company or one of its
Restricted Subsidiaries and was not incurred in connection with, or
contemplation of, such acquisition by the Company or one of its Restricted
Subsidiaries;


 


22





















 


(17)  the incurrence by the Company or any
Guarantor of Indebtedness evidenced by promissory notes subordinated to the
Notes issued to current or former employees, officers, directors or consultants
of the Company or any Subsidiary of the Company (or their respective spouses)
in lieu of cash payments for Capital Stock being repurchased from such Persons
in an aggregate principal amount not to exceed $7.0 million; and


 


(18)  the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness, to the extent the proceeds of such
Indebtedness are at the time of such incurrence deposited and used to defease
the Notes in whole and not in part as described in Article 8.


 


For purposes of determining
compliance with Section 4.09, in the event that an item of Indebtedness
meets the criteria of more than one of the categories of Permitted Indebtedness
described in clause (1), clauses (3) through (12) and clauses (14) through
(18) above or is permitted to be incurred pursuant to the proviso of Section 4.09,
the Company shall, in its sole discretion, classify (or later reclassify) such
item of Indebtedness (or any portion thereof) in any manner that complies with Section 4.09
and Section 4.12; provided, however, that all Indebtedness under the ABL Credit Facility
incurred or outstanding on the Issue Date shall be deemed to have been incurred
pursuant to clause (2) and the Company shall not be permitted to
reclassify all or any portion of any Indebtedness incurred pursuant to clause (2) or
clause (13).  Accrual of interest,
accretion or amortization of original issue discount, the payment of interest
on any Indebtedness in the form of additional Indebtedness with the same terms,
and the payment of dividends on Disqualified Capital Stock in the form of additional
shares of the same class of Disqualified Capital Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for
purposes of Section 4.09.


 


Notwithstanding
the foregoing, neither the Company nor any Guarantor shall incur any
Indebtedness set forth in this definition of “Permitted Indebtedness” if the
proceeds thereof are used, directly or indirectly, to Refinance any
Subordinated Obligations of the Company or any Guarantor unless such
Indebtedness shall be subordinated to the Notes or the applicable Guarantee to
at least the same degree as such Subordinated Obligations; provided,
however, that no Indebtedness shall be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company or
any Guarantor solely by virtue of being unsecured or by virtue of being secured
on a first or junior Lien basis.


 


“Permitted
Investments” means:


 


(1)  (a) Investments
by the Company or any Restricted Subsidiary of the Company in (i) any Guarantor
(whether existing on the Issue Date or created thereafter), (ii)  any
Person (including by means of any transfer of cash or other property) if, as a
result of such Investment, such Person shall become a Guarantor or (iii) any
Person, if as a result of such Investment, such Person is merged with or
consolidated into the Company or a Guarantor and (b) Investments in the
Company by any Restricted Subsidiary of the Company;


 


(2)  Investments in
cash and Cash Equivalents;


 


(3)  loans and advances
to employees and officers of the Company and its Restricted Subsidiaries for
bona fide business purposes in an aggregate principal amount not to exceed $5.0
million at any one time outstanding;


 


(4)  Hedging
Agreements, Currency Agreements and Interest Swap Obligations entered into in
the ordinary course of business and otherwise in compliance with this Indenture
and not for purposes of speculation;


 


23





















 


(5)  Investments in
securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers or in good faith settlement of delinquent
obligations of such trade creditors or customers;


 


(6)  Investments made
by the Company or its Restricted Subsidiaries as a result of consideration
received in connection with an Asset Sale made in compliance with Section 4.10;


 


(7)  Investments
existing on the Issue Date or made pursuant to commitments existing on the
Issue Date;


 


(8)  accounts
receivable created or acquired in the ordinary course of business;


 


(9)  guarantees by the
Company or a Restricted Subsidiary of the Company permitted to be incurred
under this Indenture;


 


(10)  any Investment by
the Company or a Restricted Subsidiary of the Company in a Securitization
Entity or any Investment by a Securitization Entity in any other Person in
connection with a Qualified Securitization Transaction; provided
that any Investment in a Securitization Entity is in the form of a
Securitization Note or an equity interest;


 


(11)  other Investments to the extent paid for with
Qualified Capital Stock of the Company;


 


(12)  repurchases of the Notes; and


 


(13)  any Investment by the Company or any of its
Restricted Subsidiaries having an aggregate fair market value, taken together
with all other Investments made pursuant to this clause (13) that are at
that time outstanding, not to exceed $15.0 million (with the fair market value
of each Investment being measured at the time made and without giving effect to
subsequent changes in value); provided, however, that if an Investment pursuant to this clause (13)
is made in any Person that is not a Restricted Subsidiary of the Company at the
date of the making of the Investment and such Person becomes a Restricted
Subsidiary after such date, such Investment will thereafter be deemed to have
been made pursuant to clause (1) above, and will cease to have been made
pursuant to this clause (13).


 


“Permitted
Liens” means:


 


(1)  Liens securing (A) Priority
Lien Debt in an aggregate principal amount not to exceed the Priority Lien Cap
and (B) all related Priority Lien Obligations;


 


(2)  Liens securing (A) Parity
Junior Lien Debt and (B) all related Parity Junior Lien Obligations;


 


(3)  Liens for taxes,
assessments or governmental charges or claims either


 


(A)  not delinquent; or


 


(B)  contested in good
faith by appropriate proceedings and as to which the Company or the applicable
Restricted Subsidiary has set aside on its books such reserves as may be
required pursuant to GAAP;


 


24





















 


(4)  statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen and repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good
faith, if such reserve or other appropriate provision, if any, as shall be
required by GAAP has been made in respect thereof;


 


(5)  Liens incurred or
deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security,
excluding any Lien securing letters of credit issued in the ordinary course of
business consistent with past practice in connection therewith, or to secure
the performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the payment of borrowed
money);


 


(6)  judgment Liens not
giving rise to an Event of Default;


 


(7)  easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering in any material respect with the ordinary
conduct of the business of the Company or any of its Restricted Subsidiaries;


 


(8)  Liens securing (A) Indebtedness
incurred pursuant to clause (7), (15) or (16) of the definition of “Permitted
Indebtedness” and (B) all related Obligations;


 


(9)  Liens upon
specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created
for the account of such Person to facilitate the purchase, shipment or storage
of such inventory or other goods;


 


(10)  Liens securing
reimbursement obligations with respect to commercial letters of credit which
encumber documents and other property relating to such letters of credit and
products and proceeds thereof;


 


(11)  Liens encumbering deposits made to secure
obligations arising from statutory, regulatory, contractual or warranty
requirements of the Company or any of its Restricted Subsidiaries, including
rights of offset and set-off;


 


(12)  Liens securing (A) Interest Swap
Obligations entered into in the ordinary course of business and not for purposes
of speculation which Interest Swap Obligations relate to Indebtedness that is
otherwise permitted under this Indenture and (B) all related Obligations;


 


(13)  Liens securing (A) Indebtedness under
Hedging Agreements and Currency Agreements entered into in the ordinary course
of business and not for purposes of speculation and (B) all related
Obligations;


 


(14)  Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary of the Company with
respect to Indebtedness and the related Obligations that do not in the
aggregate exceed $5.0 million at any one time outstanding;


 


(15)  Liens on assets transferred to a
Securitization Entity or on assets of a Securitization Entity, in either case
incurred in connection with a Qualified Securitization Transaction;


 


25





















 


(16)  leases or subleases granted to others that do
not materially interfere with the ordinary course of business of the Company
and its Restricted Subsidiaries;


 


(17)  Liens existing on the Issue Date (other than
Liens on Indebtedness that is Priority Lien Debt), together with any Liens
securing Indebtedness incurred in reliance on clause (8) of the definition
of “Permitted Indebtedness” in order to Refinance the Indebtedness secured by
Liens existing on the Issue Date (other than Liens on Indebtedness that is
Priority Lien Debt); provided, however, that (A) the Liens securing the Refinancing
Indebtedness shall not extend to property other than that pledged under the
Liens securing the Indebtedness being Refinanced and (B) the Indebtedness
secured by such Lien at the time is not increased to any amount greater than
the sum of (x) the outstanding principal amount or, if greater, committed
amount of the Indebtedness being Refinanced at the time the original Lien
became a Permitted Lien and (y) an amount necessary to pay interest, Required
Premiums and fees and expenses related to such Refinancing;


 


(18)  Liens in favor of the Company or a Restricted
Subsidiary of the Company;


 


(19)  Liens on property (including Capital Stock)
existing at the time of acquisition of the property by the Company or any
Subsidiary of the Company; provided that
such Liens were in existence prior to such acquisition, were not incurred in
contemplation of such acquisition and do not extend to any other property owned
by the Company or any Subsidiary of the Company (other than assets and property
affixed or appurtenant thereto);


 


(20)  Liens arising from filing precautionary
Uniform Commercial Code financing statements regarding leases;


 


(21)  Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; and


 


(22) Liens that do not
secure Indebtedness.


 


For purposes of determining
the amount of Priority Lien Debt outstanding under clause (1) of this
definition, all letters of credit will be valued at the face amount thereof,
whether or not drawn (but without duplication of the principal amount of any
other Indebtedness), and all Interest Swap Obligations will be valued at zero.


 


“Permitted
Payments to Parent” means, without duplication as to amounts:


 


(1)                                  any Restricted Payment made to Parent or any
other direct or indirect parent company of the Company (other than Iron Merger
Partnership and any direct or indirect parent company of Iron Merger
Partnership) to be used by Parent or such other direct or indirect parent
company solely (A) to pay its franchise taxes and other fees required to
maintain its corporate existence, (B) to pay for general corporate and
overhead expenses (including salaries and other compensation of the employees
and directors, board activities, insurance, legal (including litigation,
judgments and settlements), accounting, corporate reporting, administrative and
other general operating expenses) incurred by Parent or such other parent
company in the ordinary course of business or (C) to pay expenses incurred
in connection with an initial public offering of Common Stock of Parent or such
other direct or indirect parent; provided, however,
that such Restricted Payments may not be made to pay such general corporate and
overhead expenses to the extent that (x) the Company would not be permitted
under this Indenture to take the actions giving rise to such expenses or to
incur such expenses or (y) such expenses are attributable to the


 


26





















 


ownership or operation of
any Person other than the Company and its Subsidiaries; provided
further, however, that such Restricted Payments to Parent and such
other direct or indirect parent company pursuant to this clause (1) shall
not exceed in the aggregate $2.0 million per calendar year; and


 


(2)                                  payments to Parent or any other direct or
indirect parent company of the Company (other than Iron Merger Partnership and
any direct or indirect parent company of Iron Merger Partnership) in respect of
income taxes of the Company and any Subsidiaries of the Company (“Tax Payments”); provided, however,
that the aggregate Tax Payments made since the Issue Date shall not exceed the
lesser of:


 


(A)                              (i) the aggregate amount of the relevant
tax (including any penalties and interest) that the Company would owe after the
Issue Date if the Company were a “C” corporation for United States Federal,
state and local income tax purposes filing a separate tax return (or a
consolidated or combined return with any Subsidiaries of the Company that are
members of a consolidated or combined group with Parent or such other direct or
indirect parent company), taking into account any carryovers and carrybacks of
tax attributes (such as net operating losses) of the Company and its
Subsidiaries, less (ii) the amount of any income taxes that the Company or
its Subsidiaries pay directly to a taxing authority after the Issue Date; and


 


(B)                                the aggregate amount of the relevant tax that
Parent or such other parent company actually owes to the appropriate taxing
authority after the Issue Date;


 


provided further, however, that any Tax Payments received from the Company shall be paid over to
the appropriate taxing authority within 30 days of Parent’s or such other
parent company’s receipt of such Tax Payments or refunded to the Company.


 


“Person” means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.


 


“Preferred
Stock” of any Person means any Capital
Stock of such Person that has preferential rights to any other Capital Stock of
such Person with respect to dividends or redemptions or upon liquidation.


 


“Priority Lien” means any Lien granted by any Priority Lien
Security Document to any Priority Lien Representative, at any time, upon any
property of the Issuers or any other Grantor to secure Priority Lien
Obligations.


 


“Priority Lien After-Acquired Property” means
any property or assets (other than property or assets constituting the
Collateral on the Issue Date) of the Company, Neff Rental or any future Restricted Subsidiary that is or becomes a
Guarantor pursuant to Section 4.18 that secures any Priority Lien
Obligations.


 


“Priority Lien Cap” means, as of any date, the principal amount
outstanding under the ABL Credit Facility, together with the Indebtedness
outstanding under any other Credit Facility that is secured by a Priority Lien,
in an aggregate principal amount not to exceed the sum of the amount permitted
to be incurred pursuant to clause (2) of the definition of “Permitted
Indebtedness”, as of any date; plus $15,000,000,
less the amount of Parity Junior Lien
Debt incurred after the Issue Date pursuant to clause (2) or (13) of the
definition of “Permitted Indebtedness” the net proceeds of which are used to
Refinance Priority Lien Debt and for which there is a reduction in the
commitments in respect of such


 


27





















 


Priority
Lien Debt in an amount equal to the amount of such Parity Junior Lien Debt.  For purposes of this definition, all letters
of credit will be valued at the face amount thereof, whether or not drawn (but
without duplication of the principal amount of any other Indebtedness), and all
Interest Swap Obligations will be valued at zero.


 


“Priority Lien Collateral” means all Collateral (as defined in the ABL
Credit Facility) and any other assets or property of the Company or any Grantor
now or at any time hereafter subject to Liens securing any Priority Lien
Obligations.


 


“Priority Lien
Collateral Agent”
means the ABL Facility Agent and its successors, each in its capacity as
Priority Lien Collateral Agent under the ABL Credit Facility and any other
Person designated as a collateral agent with respect to any other Series of
Priority Lien Debt; provided that,
until the Discharge of Priority Lien Obligations in respect of the Obligations
under the ABL Credit Facility has occurred, the ABL Facility Agent and its
successors, each in its capacity as Priority Lien Collateral Agent under the
ABL Credit Facility shall be the sole authorized Person to act as the Priority
Lien Collateral Agent with respect to the Obligations under the ABL Credit
Facility and each other Series of Priority Lien Debt unless otherwise
determined by the ABL Facility Agent or such successor, the Company and the
Required Priority Lien Debtholders at the time such other Series of
Priority Lien Debt is incurred (such determination to be evidenced in the
joinder in the form required under the Intercreditor Agreement to be executed
and delivered in connection with the issuance of such Series of Priority
Lien Debt).


 


“Priority
Lien Debt” means:


 


(1)  Indebtedness of
the Issuers, Neff Rental or any other Guarantor under the ABL Credit Facility (to
the extent such Indebtedness is not Refinanced with Parity Junior Lien Debt
that would reduce the Priority Lien Cap) that was permitted to be incurred and
secured under each applicable Secured Debt Document, which for purposes of this
Indenture, shall be Indebtedness that is incurred under clause (2) or
clause (13) of the definition of “Permitted Indebtedness”;


 


(2)  Indebtedness of
the Issuers, Neff Rental or any other Guarantor under any other Credit Facility
that is secured equally and ratably (or on such other basis as may be agreed by
the relevant holders of the Priority Lien Obligations) with the ABL Credit
Facility by a Priority Lien that was permitted to be incurred and so secured
under each applicable Secured Debt Document, which for purposes of this
Indenture, shall be Indebtedness that is incurred under clause (2) or
clause (13) of the definition of “Permitted Indebtedness”; provided
that, in the case of any Indebtedness referred to in this clause (2), on or
before the date on which such Indebtedness is incurred by the Issuers, Neff
Rental or such other Guarantor, such Indebtedness is designated by the Company,
in an Officer’s Certificate delivered to each Priority Lien Representative, the
Priority Lien Collateral Agent and the Parity Junior Lien Collateral Agent, as “Priority
Lien Debt” for the purposes of the Secured Debt Documents; provided
that no Series of Secured Debt may be designated as both Parity Junior
Lien Debt and Priority Lien Debt; and


 


(3)  Interest Swap
Obligations of the Issuers, Neff Rental or any other Guarantor that are incurred
pursuant to clause (4) of the definition of “Permitted Indebtedness” and
permitted to be incurred pursuant to the ABL Credit Facility and any other
Priority Lien Documents; provided that:


 


(a)  such Interest Swap
Obligations are secured by a Priority Lien on all or substantially all of the assets
and properties that secure Indebtedness under the Credit Facility in respect of
which security for such Interest Swap Obligations was obtained; and


 


28





















 


(b)  such Priority Lien
is pari passu with the Priority Liens
securing Indebtedness under the Credit Facility in respect of which security
for such Interest Swap Obligations was obtained.


 


“Priority
Lien Documents” means the ABL Credit Facility and any other Credit
Facility pursuant to which any Priority Lien Debt is incurred and the
applicable Priority Lien Security Documents.


 


“Priority
Lien Obligations” means the Priority Lien Debt and all other
Obligations in respect of Priority Lien Debt.


 


“Priority Lien Representative” means (1) in the case of
Priority Lien Collateral, each applicable Priority Lien Collateral Agent, (2) in
the case of the ABL Credit Facility, the ABL Facility Agent or (3) in the
case of any other Series of Priority Lien Debt, the trustee, agent or
representative of the holders of such Series of Priority Lien Debt who
maintains the transfer register for such Series of Priority Lien Debt and
in the case of clause (3), (a) is appointed as a representative of the
Priority Lien Debt (for purposes related to the administration of the applicable
Priority Lien Security Documents) pursuant to a credit agreement or other
agreement governing such Series of Priority Lien Debt and (b) has
become a party to the Intercreditor Agreement by executing a joinder in the
form required under the Intercreditor Agreement.


 


“Priority
Lien Security Documents” means the Intercreditor Agreement, the
Collateral Documents (as defined in the ABL Credit Facility), all security
agreements, pledge agreements, collateral assignments, mortgages, deeds of
trust, collateral agency agreements, control agreements, documents, instruments
or other grants or transfers for security executed and delivered by the
Company, Neff Rental or any other Grantor creating (or purporting to create) a
Priority Lien upon Collateral in favor of the Priority Lien Representatives, in
each case, as amended, modified, renewed, restated or replaced, in whole or in
part, from time to time, in accordance with its terms.


 


“Private
Placement Legend” means the legend set forth in the Appendix to be
placed on all Notes issued under this Indenture except where otherwise
permitted by the provisions of this Indenture.


 


“Productive
Assets” means assets (including Capital
Stock) that are used or usable by the Company and its Restricted Subsidiaries
in Permitted Businesses.


 


“Purchase
Agreement” means (1) with respect to the Initial Notes issued
on the Issue Date, the Purchase Agreement dated June 30, 2005, among the
Issuers, Neff Rental and the Initial Purchaser, and (2) with respect to
each issuance of Additional Notes, the purchase agreement or underwriting
agreement among the Issuers, the Guarantors and the Persons purchasing such
Additional Notes.


 


“Qualified
Capital Stock” means any
Capital Stock that is not Disqualified Capital Stock.


 


“Qualified
Securitization Transaction” means any
transaction or series of transactions that may be entered into by the Company
or any of its Restricted Subsidiaries pursuant to which the Company or any of
its Subsidiaries may sell, convey or otherwise transfer to:


 


(1)  a Securitization
Entity (in the case of a transfer by the Company or any of its Restricted
Subsidiaries); and


 


(2)  any other Person
(in the case of a transfer by a Securitization Entity),


 


29





















 


or may grant a security
interest in any accounts receivable (whether now existing or arising or
acquired in the future) of the Company or any of its Restricted Subsidiaries,
and any assets related thereto, including all collateral securing such accounts
receivable, all contracts and contract rights and all guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets (including contract rights) which are customarily
transferred or in respect of which security interests are customarily granted
in connection with asset securitization transactions involving accounts
receivable.


 


“Quotation
Agent” means the Reference Treasury Dealer selected by the Trustee
after consultation with the Company.


 


“Recapitalization” means the recapitalization of Parent consummated on June 3,
2005.


 


“Recapitalization
Agreement” means the Recapitalization Agreement dated as of April 6,
2005, between Iron Merger Sub, Inc., a Delaware corporation, and Parent.


 


“Receivables
Fees” means distributions or payments made directly or by means of
discounts with respect to any participation interests issued or sold in
connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Qualified Securitization Transaction.


 


“Reference
Treasury Dealer” means Credit Suisse First Boston LLC and its
successors and assigns and two other nationally recognized investment banking
firms selected by the Company that are primary U.S. Government securities
dealers.


 


“Reference Treasury
Dealer Quotations” means with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue, expressed in each
case as a percentage of its principal amount, quoted in writing to the Trustee
by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the
third Business Day immediately preceding such redemption date.


 


“Refinance”
means, in respect of any Indebtedness, to refinance, extend, renew,
restructure, refund or replace (including by prepayment, redemption, defeasance
or otherwise) or to issue other Indebtedness or commitments pursuant to which
Indebtedness may be incurred in exchange or replacement for or in addition to
such Indebtedness or any such commitments (whether or not any Indebtedness is
outstanding thereunder and whether or not in connection therewith such
Indebtedness or commitments are increased), in each case in whole or in
part.  “Refinanced”
and “Refinancing” shall have correlative
meanings.


 


“Refinancing
Indebtedness” means any
Refinancing, modification, replacement, restatement, refunding, deferral,
extension, substitution, supplement, reissuance or resale of existing or future
Indebtedness (other than intercompany Indebtedness), including any additional
Indebtedness incurred to pay interest or premiums required by the instruments
governing such existing or future Indebtedness as in effect at the time of
issuance thereof (“Required Premiums”)
and fees and expenses in connection therewith; provided,
however, that:


 


(1)  the incurrence of
such Refinancing Indebtedness shall not directly or indirectly result in an
increase in the aggregate principal amount of Indebtedness, except to the
extent such increase is a result of a simultaneous incurrence of additional
Indebtedness to pay Required Premiums, accrued interest and related fees and
expenses;


 


30










 










 


(2)  such Refinancing
Indebtedness shall not have a Weighted Average Life to Maturity at the time
such Refinancing Indebtedness is incurred that is less than the Weighted
Average Life to Maturity at such time of the Indebtedness being refinanced,
modified, replaced, renewed, restated, refunded, deferred, extended,
substituted, supplemented, reissued or resold;


 


(3)  such Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being Refinanced; and


 


(4)  if the
Indebtedness being Refinanced is subordinated in right of payment to the Notes
or the Guarantee of any Guarantor, as applicable, such Refinancing Indebtedness
is subordinated in right of payment to the Notes or the Guarantee of such
Guarantor, as applicable, at least to the same extent as the Indebtedness being
Refinanced; provided that no Indebtedness will be
deemed to be contractually subordinated in right of payment to any other
Indebtedness of the Company or its Restricted Subsidiaries solely by virtue of
being unsecured or by virtue of being secured on a first or junior Lien basis.


 


“Registered
Exchange Offer” means the Registered Exchange Offer, as defined in
the Registration Rights Agreement.


 


“Registration
Rights Agreement” means (1) with respect to the Initial Notes
issued on the Issue Date, the Registration Rights Agreement dated as of July 8,
2005, among the Issuers, Neff Rental and the Initial Purchaser and (2) with
respect to each issuance of Additional Notes issued in a transaction exempt
from the registration requirements of the Securities Act, the registration
rights agreement, if any, among the Issuers, the Guarantors and the Persons
purchasing such Additional Notes under the related Purchase Agreement.


 


“Registration
Statement” means each Registration Statement as defined in the
Registration Rights Agreement.


 


“Related
Party” with respect to any Permitted
Holder means:


 


(a) (1)  any
spouse, sibling, parent or child of such Permitted Holder; or


 


(2)  the estate of any
Permitted Holder during any period in which such estate holds Capital Stock of
the Company for the benefit of any Person referred to in clause (a)(1); or


 


(b)  any trust,
corporation, partnership, limited liability company or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially owning an
interest of more than 50% of which consist of, or the sole managing partner or
managing member of which is, one or more Permitted Holders or such other
Persons referred to in the immediately preceding clause (a).


 


“Required Priority Lien Debtholders” means (1) with respect to the Obligations
under the ABL Credit Facility, the “Required Lenders” under and as defined in
the ABL Credit Facility (or any similar term in any subsequent ABL Credit
Facility) and (2) with respect to all other Priority Lien Obligations, at
any time, the holders of more than 50% of the sum of:


 


(A)  the aggregate
outstanding principal amount of Priority Lien Debt (including outstanding
letters of credit whether or not then available or drawn); and


 


31





















 


(B)   the
aggregate unfunded commitments to extend credit which, when funded, would
constitute Priority Lien Debt.


 


For purposes of this
definition, (i) Priority Lien Debt registered in the name of, or
beneficially owned by, the Company or any Affiliate of the Company will be deemed
not to be outstanding and (ii) votes will be determined in accordance with
the applicable documents governing such Priority Lien Debt.


 


“Responsible
Officer,” when used with respect to the Trustee, means any officer
within the Corporate Trust Administration division of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.


 


“Restricted
Definitive Note” means a Definitive Note bearing the Private
Placement Legend.


 


“Restricted
Global Note” means a Global Note bearing the Private Placement
Legend.


 


“Restricted
Subsidiary” of any Person
means any Subsidiary of such Person which at the time of determination is not
an Unrestricted Subsidiary.


 


“Rule 144”
means Rule 144 promulgated under the Securities Act.


 


“Rule 144A”
means Rule 144A promulgated under the Securities Act.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its successors.


 


“Sale and
Leaseback Transaction” means any
direct or indirect arrangement with any Person or to which any such Person is a
party providing for the leasing to the Company or a Restricted Subsidiary of
the Company of any property, whether owned by the Company or any Restricted
Subsidiary of the Company at the Issue Date or later acquired, which has been
or is to be sold or transferred by the Company or such Restricted Subsidiary to
such Person or to any other Person from whom funds have been or are to be
advanced by such Person on the security of such Property.


 


“Sale of
Collateral” means any Asset Sale involving a sale or other
disposition of Collateral.


 


“SEC” means the Securities and Exchange Commission.


 


“Secured Debt” means Parity Junior Lien Debt and Priority
Lien Debt.


 


“Secured Debt Documents” means the Parity Junior Lien Documents and
the Priority Lien Documents.


 


“Secured Debt Representative” means each Parity Junior Lien
Representative and each Priority Lien Representative.


 


32





















 


“Secured Obligations” means the Parity Junior Lien
Obligations and the Priority Lien Obligations.


 


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.


 


“Securitization
Entity” means any Person in which the
Company or any Restricted Subsidiary of the Company makes an Investment and to
which the Company or any Restricted Subsidiary of the Company transfers
accounts receivable (and related assets including contract rights) which
engages in no activities other than in connection with the financing of accounts
receivable or related assets (including contract rights) and which is
designated by the Board of Directors of the Company (as provided below) as a
Securitization Entity:


 


(1)  no portion of the
Indebtedness or any other Obligations (contingent or otherwise) of which:


 


(a)  is guaranteed by
the Company or any Restricted Subsidiary of the Company (excluding guarantees
of Obligations (other than the principal of, and interest on, Indebtedness))
pursuant to Standard Securitization Undertakings;


 


(b)  is recourse to or
obligates the Company or any Restricted Subsidiary of the Company in any way
other than pursuant to Standard Securitization Undertakings; or


 


(c)  subjects any
property or asset of the Company or any Restricted Subsidiary of the Company,
directly or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to Standard Securitization Undertakings;


 


(2)  with which neither
the Company nor any Restricted Subsidiary of the Company has any material
contract, agreement, arrangement or understanding other than on terms no less
favorable to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Company, other
than fees payable in the ordinary course of business in connection with
servicing receivables of such entity; and


 


(3)  to which neither
the Company nor any Restricted Subsidiary of the Company has any obligation to
maintain or preserve such entity’s financial condition or cause such entity to
achieve certain levels of operating results.


 


Any such designation by the
Board of Directors of the Company shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the Board Resolution of the Company giving
effect to such designation and an Officer’s Certificate certifying that such
designation complied with the foregoing conditions.


 


“Securitization
Note” means a promissory note of a Securitization Entity evidencing
amounts owed to the Company or any Restricted Subsidiary of the Company in
connection with a Qualified Securitization Transaction to a Securitization
Entity, which note shall be repaid from cash available to the Securitization
Entity other than amounts required to be established as reserves pursuant to
agreements, amounts paid to investors in respect of interest and principal and
amounts paid in connection with the purchase of newly generated receivables.


 


“Senior Debt” means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the commencement of an
Insolvency or Liquidation Proceeding at the rate


 


33





















 


provided
for in the documentation with respect thereto, whether or not such interest is
an allowed claim under applicable law) on any Indebtedness of the Issuers or
any Guarantor, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall be subordinated in
right of payment to the Notes or the Guarantees of such Guarantor, as the case
may be.


 


Notwithstanding the
foregoing, “Senior Debt” shall not include:


 


(i)  any Indebtedness
of either of the Issuers or a Guarantor to either of the Issuers or to a
Subsidiary of the Company (other than Finance Corp.);


 


(ii)  any Indebtedness
to, or guaranteed on behalf of, any director, officer or employee of the
Company or any Subsidiary of the Company (including amounts owed for
compensation);


 


(iii)  any accounts
payable, other liability or Indebtedness to trade creditors and other amounts
incurred in connection with obtaining goods, materials or services;


 


(iv)  Indebtedness
represented by Disqualified Capital Stock;


 


(v)  any liability for
federal, state, local or other taxes owed or owing by the Company or any
Guarantor;


 


(vi)  that portion of
any Indebtedness incurred in violation of Section 4.09 (but, as to any
such obligation, no such violation shall be deemed to exist for purposes of
this clause (vi) if the holder(s) of such obligation or their
representative and the Trustee shall have received an Officer’s Certificate of
the Company to the effect that the incurrence of such Indebtedness does not (or
in the case of revolving credit indebtedness, that the incurrence of the entire
committed amount thereof at the date on which the initial borrowing thereunder
is made) would not violate such provisions of this Indenture);


 


(vii)  Indebtedness
which, when incurred and without respect to any election under Section 1111(b) of
Title 11, United States Code, is without recourse to the Company; and


 


(viii)  any
Indebtedness which is, by its express terms, subordinated in right of payment
to any other Indebtedness of the Company, any other Indebtedness of Finance
Corp. or any other Indebtedness of any Guarantor.


 


Notwithstanding the foregoing,
no Indebtedness will be deemed to be contractually subordinated in right of
payment to any other Indebtedness of the Company or its Restricted Subsidiaries
solely by virtue of being unsecured or by virtue of being secured on a first or
junior Lien basis.


 


“Senior
Subordinated Notes” means $80,000,000 aggregate original principal
amount of the Issuers’ 13% Senior Subordinated Notes due 2013.


 


“Senior
Subordinated Note Indenture” means, collectively, the indenture
dated as of June 3, 2005, among Parent, Neff Rental and Wells Fargo Bank,
National Association, as trustee thereunder, as amended and restated as of July 8,
2005, among the Issuers, Neff Rental and Wells Fargo Bank, National
Association, as trustee thereunder, governing the Senior Subordinated Notes.


 


34





















 


“Series of Parity Junior Lien Debt” means, severally,
the Notes and each other issue or series of Parity Junior Lien Debt for which a
single transfer register is maintained.


 


“Series of Priority Lien Debt” means, severally, the Indebtedness outstanding under the
ABL Credit Facility and any other Credit Facility pursuant to which any Grantor
incurs Priority Lien Debt.


 


“Series of Secured Debt” means each Series of
Parity Junior Lien Debt and each Series of Priority Lien Debt.


 


“Shelf
Registration Statement” means the Shelf Registration Statement, as
defined in the Registration Rights Agreement.


 


“Significant
Subsidiary” with respect
to any Person, means any Restricted Subsidiary of such Person that satisfies
the criteria for a “significant subsidiary” set forth in Rule 1-02(w)
of Regulation S-X under the Securities Act.


 


“Spot Rate”
means, for any currency, the spot rate at which that currency is offered for
sale against United States dollars, as determined by reference to the New York
foreign exchange selling rates, as published in The Wall Street Journal on that
date of determination for the immediately preceding business day or, if that
rate is not available, as determined in any publicly available source of
similar market data.


 


“Standard
Securitization Undertakings” means
representations, warranties, covenants and indemnities entered into by the
Company or any Subsidiary of the Company which are reasonably customary in a
Qualified Securitization Transaction.


 


“Stated
Maturity” means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.


 


“Stockholders Agreement” means the stockholders agreement
dated as of June 3, 2005, among Iron Merger Partnership, Parent, New York
Life Capital Partners II, L.P., New York Life Investment Management Mezzanine
Partners, LP, NYLIM Mezzanine Partners Parallel Fund, LP., J.C. Mas, JC Mas
Holdings I, L.P. and each other stockholder of Parent as of June 3, 2005.


 


“Subordinated
Obligation” means, with respect to a Person, any Indebtedness of
such Person (whether outstanding on the Issue Date or thereafter incurred)
which is subordinate or junior in right of payment to the Notes or a Guarantee
of such Person, as the case may be, pursuant to a written agreement to that
effect.


 


“Subsidiary” with respect to any Person, means:


 


(1)  any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person; or


 


(2)  any other Person
of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.


 


35





















 


“Tax Payment”
has the meaning assigned to such term in the definition of “Permitted Payments
to Parent.”


 


“TIA”
means the Trust Indenture Act of 1939, as amended, (15 U.S.C.
§§ 77aaa-77bbbb) as in effect on the Issue Date.


 


“Total Assets” means the total consolidated assets of the Company and its
Restricted Subsidiaries, as set forth on the Company’s most recent consolidated
balance sheet.


 


“Transaction
Date” has the meaning specified in the definition of Consolidated
Fixed Charge Coverage Ratio.


 


“Transactions”
means the transactions contemplated by the Recapitalization Agreement, as in
effect on June 3, 2005, including the related financings.


 


“Trustee”
means Wells Fargo Bank, National Association until a successor replaces it and,
thereafter, means the successor.


 


“Uniform
Commercial Code” means the Uniform Commercial Code as the same may,
from time to time, be enacted and in effect in the State of New York; provided, that to the extent that the Uniform Commercial
Code is used to define any term herein or in any Note Document and such term is
defined differently in different Articles of the Uniform Commercial Code, the
definition of such term contained in Article 9 shall govern; provided further, that in the event that, by reason of
mandatory provisions of law, any or all of the attachment, perfection or
priority of, or remedies with respect to, the Lien of the Parity Junior Lien
Collateral Agent or any holder of Secured Obligations on any Collateral is
governed by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of New York, the term “Uniform Commercial
Code” shall mean the Uniform Commercial Code as enacted and in effect in such
other jurisdiction solely for purposes of the provisions thereof relating to
such attachment, perfection, priority or remedies and for purposes of
definitions related to such provisions.


 


“Unrestricted
Global Note” means a permanent global Note in the form of Exhibit A
attached hereto that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depositary,
representing a series of Notes that do not bear the Private Placement Legend.


 


“Unrestricted
Subsidiary” of any Person means:


 


(1)  any Subsidiary of
such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below; and


 


(2)  any Subsidiary of
an Unrestricted Subsidiary.


 


The Board of Directors of
the Company may designate any Subsidiary (other than Finance Corp. and Neff
Rental) (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any other Subsidiary
of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided that:


 


36





















 


(1)  the Company
certifies to the Trustee that such designation complies with Section 4.07;
and


 


(2)  each Subsidiary to
be so designated and each of its Subsidiaries has not at the time of
designation, and does not thereafter, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Company or any of its Restricted Subsidiaries.


 


The Board of Directors of
the Company may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if (x) immediately after giving effect to such
designation, the Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.09
and (y) immediately before and immediately after giving effect to such
designation, no Default shall have occurred and be continuing.  Any such designation by the Board of
Directors of the Company shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the Board Resolution giving effect to such
designation and an Officer’s Certificate certifying that such designation
complied with the foregoing provisions.


 


“U.S. Person”
means a U.S. person as defined in Rule 902(k) under the Securities Act.


 


“Voting Stock” of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.


 


“Weighted
Average Life to Maturity” means, when
applied to any Indebtedness at any date, the number of years obtained by
dividing:


 


(1)  the then
outstanding aggregate principal amount of such Indebtedness into


 


(2)  the sum of the
total of the products obtained by multiplying


 


(a)  the amount of each
then remaining installment, sinking fund, serial maturity or other required
payment of principal, including payment at final maturity, in respect thereof
by


 


(b)  the number of
years (calculated to the nearest one-twelfth) which will elapse between such
date and the making of such payment.


 


“Wholly Owned
Restricted Subsidiary” of any Person
means any Wholly Owned Subsidiary of such Person which at the time of
determination is a Restricted Subsidiary.


 


“Wholly Owned
Subsidiary” of any Person
means any Subsidiary of such Person of which all the outstanding voting
securities (other than in the case of a Restricted Subsidiary that is
incorporated in a jurisdiction other than a State in the United States or the
District of Columbia, directors’ qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Subsidiary of such Person.


 


SECTION 1.02.                                         Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Acceleration Notice”

  	
   

  	
  6.02

  	
   

  
	
  “Acceptable Commitment”

  	
   

  	
  4.10

  	
   

  



 


37





















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  	
   

  
	
  “Appendix”

  	
   

  	
  2.01

  	
   

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  	
   

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.15

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Finance Corp. Surviving Entity”

  	
   

  	
  5.01

  	
   

  
	
  “Initial Notes”

  	
   

  	
  Preamble

  
	
  “Initial Purchaser”

  	
   

  	
  Appendix

  
	
  “incur”

  	
   

  	
  4.09

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “Net Proceeds Offer”

  	
   

  	
  4.10

  	
   

  
	
  “Net Proceeds Offer Amount”

  	
   

  	
  4.10

  	
   

  
	
  “Net Proceeds Offer Payment Date”

  	
   

  	
  4.10

  	
   

  
	
  “Net Proceeds Offer Trigger Date”

  	
   

  	
  4.10

  	
   

  
	
  “Offer Period”

  	
   

  	
  3.09

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Private Exchange Notes”

  	
   

  	
  Appendix

  
	
  “Purchase Date”

  	
   

  	
  3.09

  	
   

  
	
  “Reference Date”

  	
   

  	
  4.07

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  	
   

  
	
  “Rule 3-10”

  	
   

  	
  10.01

  	
   

  
	
  “Rule 3-16”

  	
   

  	
  10.01

  	
   

  
	
  “Surviving Entity”

  	
   

  	
  5.01

  	
   

  



 


SECTION 1.03.                                         Trust
Indenture Act Definitions.


 


Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture.


 


The following TIA terms used
in this Indenture have the following meanings:


 


“indenture
securities” means the Notes and the Guarantees;


 


“indenture
security holder” means a Holder of a Note;


 


“indenture to
be qualified” means this Indenture;


 


“indenture
trustee” or “institutional trustee”
means the Trustee; and


 


“obligor”
on the Notes and the Guarantees means the Issuers and the Guarantors,
respectively, and any successor obligor upon the Notes and the Guarantees,
respectively.


 


All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule under the TIA have the meanings so assigned
to them.


 


38





















 


SECTION 1.04.                                         Rules of
Construction.


 


Unless the context otherwise
requires:


 


(1)  a term has the meaning assigned to
it;


 


(2)  an accounting term not otherwise
defined has the meaning assigned to it in accordance with GAAP;


 


(3)  “or” is not exclusive;


 


(4)  words in the singular include the
plural, and in the plural include the singular;


 


(5)  “including” means including without
limitation;


 


(6)  unsecured Indebtedness shall not be
deemed to be subordinate or junior to secured Indebtedness merely by virtue of
its nature as unsecured Indebtedness;


 


(7)  secured Indebtedness shall not be
deemed to be subordinate or junior to any other secured Indebtedness merely
because it has a junior priority with respect to the same collateral;


 


(8)  the principal amount of any
noninterest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the issuer of
such security dated such date prepared in accordance with GAAP;


 


(9)  the principal amount of any
Preferred Stock shall be (A) the maximum liquidation value of such
Preferred Stock or (B) the maximum mandatory redemption or mandatory
repurchase price with respect to such Preferred Stock, whichever is greater;


 


(10)  provisions apply to successive
events and transactions; and


 


(11)  references
to sections of or rules under the Securities Act shall be deemed to
include substitute, replacement of successor sections or rules adopted by
the SEC from time to time.


 


ARTICLE
2


 


THE
NOTES


 


SECTION 2.01.                                         Form and
Dating.


 


Provisions relating to the
Initial Notes, the Private Exchange Notes and the Exchange Notes are set forth
in the Rule 144A/Regulation S/IAI Appendix attached hereto (the “Appendix”) which is hereby incorporated in, and expressly
made part of, this Indenture. The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A, which is
hereby incorporated in and expressly made a part of, this Indenture.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Issuers are subject, if any, or usage (provided that any such notation, legend
or endorsement is in a form acceptable to the Issuers).  Each Note shall be dated the date of its
authentication.  The terms of the Notes
set forth in the Appendix and Exhibit A are part of the terms of this
Indenture.


 


39





















 


SECTION 2.02.                                         Execution
and Authentication.


 


One Officer shall sign the
Notes for each of the Issuers by manual or facsimile signature.


 


If an Officer whose
signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.


 


A Note shall not be valid
until authenticated by the manual signature of the Trustee.  The signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.


 


On the Issue Date, the
Trustee shall authenticate and deliver $245.0 million of the Issuers’ 111⁄4%
Second Priority Senior Secured Notes Due 2012 and, at any time and from time to
time thereafter, the Trustee shall authenticate and deliver Notes for original
issue in an aggregate principal amount specified in by the Issuers, in each
case upon a written order of the Issuers in the form of an Officer’s
Certificate.  Each such written order
shall specify the amount of Notes to be authenticated, whether the Notes are to
be issued as Definitive Notes or Global Notes, the date on which the original
issue of Notes is to be authenticated and, in the case of an issuance of
Additional Notes pursuant to Section 2.13 after the Issue Date, shall
certify that such issuance is in compliance with Sections 4.09 and 4.12 and
such other information as the Trustee shall reasonably request.


 


The Notes shall be issued
only in fully registered form, without coupons and only in minimum
denominations of $2,000 and any integral multiple of $1,000 thereafter.  All Notes issued under this Indenture shall
vote and consent together on all matters as one class and no series of Notes
will have the right to vote or consent as a separate class on any matter.


 


The Trustee may appoint an
authenticating agent acceptable to the Issuers to authenticate Notes.  An authenticating agent may authenticate Notes
whenever the Trustee may do so.  Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent.  An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuers.


 


SECTION 2.03.                                         Registrar
and Paying Agent.


 


The Company shall maintain
an office or agency where Notes may be presented for registration of transfer
or for exchange (“Registrar”) and an office or
agency where Notes may be presented for payment (“Paying Agent”)
and an office or agency where notices and demands to or upon the Issuers in
respect of the Notes, this Indenture and the Note Security Documents may be
served, which shall be in the Borough of Manhattan, The City of New York.  The Registrar shall keep a register of the
Notes and of their transfer and exchange. 
Such register shall be in written form or any other form capable of
being converted into written form within a reasonable time.  The Company may appoint one or more
co-registrars and one or more additional paying agents.  The term “Registrar”
includes any co-registrar and the term “Paying Agent”
includes any additional paying agent. 
The Company may change any Paying Agent or Registrar without notice to
any Holder.  The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture.  If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such.  The Company or any of
its domestic Subsidiaries may act as Paying Agent or Registrar.


 


The Issuers initially
appoint The Depository Trust Company (“DTC”) to act as
Depositary with respect to any Global Notes.


 


The Issuers initially
appoint the Trustee to act as the Registrar and Paying Agent and to act as Note
Custodian with respect to any Global Notes.


 


40





















 


SECTION 2.04.                                         Paying
Agent to Hold Money in Trust.


 


The Company shall require
each Paying Agent other than the Trustee to agree in writing that the Paying
Agent will hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal, premium, if any, or
interest (including Additional Interest, if any) on the Notes, and will notify
the Trustee of any default by the Issuers in making any such payment.  While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the Trustee.  The Issuers at any time may require a Paying
Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money.  If the Company
or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying
Agent.  Upon any bankruptcy or
reorganization proceedings relating to any Issuer or any Significant Subsidiary,
the Trustee shall serve as Paying Agent for the Notes.


 


SECTION 2.05.                                         Holder
Lists.


 


The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of all Holders and shall otherwise
comply with TIA § 312(a).  If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA § 312(a).


 


SECTION 2.06.                                         Transfer
and Exchange.


 


The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note for
registration of transfer.  When a Note is
presented to the Registrar or a co-registrar with a request to register a
transfer, the Registrar shall register the transfer as requested if the
requirements of this Indenture and Section 8-401(1) of the
Uniform Commercial Code are met.  When
Notes are presented to the Registrar or a co-registrar with a request to
exchange them for an equal principal amount of Notes of other denominations,
the Registrar shall make the exchange as requested if the same requirements are
met.  To permit registration of transfers
and exchanges, the Issuers shall execute and the Trustee shall authenticate
Notes at the Registrar’s or co-registrar’s request.  The Issuers may require payment of a sum
sufficient to pay all taxes, assessments or other governmental charges in
connection with any transfer or exchange pursuant to this Section (other
than any such transfer taxes, assessments or similar governmental charge
payable upon exchange or transfer pursuant to Sections 3.06, 4.15 and
9.05.  The Issuers shall not be required
to make and the Registrar need not register transfers or exchanges of Notes
selected for redemption (except, in the case of Notes to be redeemed in part,
the portion thereof not to be redeemed) or any Notes for a period of
15 days before a selection of Notes to be redeemed or 15 days before
an interest payment date.


 


Prior to the due
presentation for registration of transfer of any Note, the Issuers, the
Trustee, the Paying Agent, the Registrar or any co-registrar may deem and treat
the person in whose name a Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Note and for all other purposes whatsoever, whether or not such Note is overdue,
and none of the Issuers, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.


 


All Notes issued upon any
transfer or exchange pursuant to the terms of this Indenture shall evidence the
same debt and shall be entitled to the same benefits under this Indenture as
the Notes surrendered upon such transfer or exchange.


 


41





















 


SECTION 2.07.                                         Replacement
Notes.


 


If any mutilated Note is
surrendered to the Trustee or the Issuers and the Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Note, the Issuers
shall issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the requirements of Section 8-405
of the Uniform Commercial Code are met and the Trustee’s requirements are
met.  If required by the Trustee or the Issuers,
an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Issuers to protect the Issuers, the Trustee,
any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced.  The Issuers
may charge for its reasonable out-of-pocket expenses in replacing a Note.


 


Every replacement Note is an
additional obligation of the Issuers and shall be entitled to all of the
benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.


 


SECTION 2.08.                                         Outstanding
Notes.


 


The Notes outstanding at any
time are all the Notes authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions
hereof, and those described in this Section as not outstanding.  Except as set forth in Section 2.09, a
Note does not cease to be outstanding because the Issuers or an Affiliate of
the Issuers holds the Note.


 


If a Note is replaced
pursuant to Section 2.07, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Note is held by a bona fide
purchaser.


 


If the principal amount of
any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.


 


If the Paying Agent (other
than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a
redemption date or maturity date, money sufficient to pay Notes payable on that
date, then on and after that date such Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest.


 


SECTION 2.09.                                         Treasury
Notes.


 


In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Issuers, or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Issuers, shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes that the Trustee
knows are so owned shall be so disregarded.


 


SECTION 2.10.                                         Temporary
Notes.


 


Until certificates
representing Notes are ready for delivery, the Issuers may prepare and the
Trustee, upon receipt of a written authentication order pursuant to Section 2.02,
shall authenticate temporary Notes. 
Temporary Notes shall be substantially in the form of certificated Notes
but may have variations that the Issuers consider appropriate for temporary
Notes and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Issuers shall
prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes.


 


42





















 


Holders of temporary Notes
shall be entitled to all of the benefits of this Indenture.


 


SECTION 2.11.                                         Cancellation.


 


The Issuers at any time may
deliver Notes to the Trustee for cancellation. 
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall return canceled Notes to the Company.  Certification of the destruction of all
canceled Notes shall be delivered to the Company.  Except as permitted pursuant to Section 2.07,
the Issuers may not issue new Notes to replace Notes that it has paid or that
have been delivered to the Trustee for cancellation.


 


SECTION 2.12.                                         CUSIP
Numbers.


 


The Issuers in issuing the
Notes may use “CUSIP” numbers (if then generally in use), and, if so, the
Trustee shall use CUSIP numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or the
omission of such numbers.  The Company
will promptly notify the Trustee of any change in the CUSIP numbers.


 


SECTION 2.13.                                         Issuance of
Additional Notes.


 


After the Issue Date, the Issuers
shall be entitled, subject to its compliance with Sections 4.09 and 4.12, to
issue Additional Notes under this Indenture, which Notes shall have identical
terms as the Initial Notes issued on the Issue Date, other than with respect to
the date of issuance and issue price. 
All the Notes issued under this Indenture shall be treated as a single
class for all purposes of the Note Documents, including waivers, amendments,
redemptions and offers to purchase.


 


With respect to any
Additional Notes, the Issuers shall set forth in a resolution of the Board of
Directors of such Person and an Officer’s Certificate, a copy of each which
shall be delivered to the Trustee, the following information:


 


(1)  the aggregate
principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Indenture and the provision of Sections 4.09 (including
the related definitions) and 4.12 (including the related definitions) that the
Company is relying on to issue such Additional Notes;


 


(2)  the issue price,
the issue date and the CUSIP number of such Additional Notes; provided, however, that
no Additional Notes may be issued at a price that would cause such Additional
Notes to have “original issue discount” within the meaning of Section 1273
of the Code;  and


 


(3)  whether such
Additional Notes shall be Initial Notes or shall be issued in the form of
Exchange Notes as set forth in Exhibit A.


 


43





















 


ARTICLE
3


 


REDEMPTION AND PREPAYMENT


 


SECTION 3.01.                                         Notices to
Trustee.


 


If the Company elects to
redeem Notes pursuant to the optional redemption provisions of Section 3.07,
it shall furnish to the Trustee, at least 30 days but not more than
60 days before a redemption date an Officer’s Certificate setting forth (i) the
clause of Section 3.07 pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the redemption price, (iv) the CUSIP numbers
of the Notes to be redeemed and (v) that such redemption will comply with
the conditions contained in this Article 3.


 


SECTION 3.02.                                         Selection
of Notes to Be Redeemed.


 


If less than all of the
Notes are to be redeemed or purchased in an offer to purchase at any time, the
Trustee shall select the Notes to be redeemed or purchased among the Holders of
the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis,
by lot or in accordance with any other method the Trustee considers fair and
appropriate.  Notwithstanding the
foregoing, if less than all of the Notes are to be redeemed pursuant to Section 3.07(b) or
purchased pursuant to Section 3.09, the Trustee shall select the Notes to
be redeemed among the Holders of the Notes pro rata basis
or on as nearly a pro rata basis as is
practicable.  In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days
prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.


 


The Trustee shall promptly
notify the Company in writing of the Notes selected for redemption and, in the
case of any Note selected for partial redemption, the principal amount to be
redeemed.  Notes and portions of Notes
selected shall be in minimum amounts of $2,000 or whole multiples of
$1,000.  The provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes
called for redemption.


 


SECTION 3.03.                                         Notice of
Redemption.


 


Subject to the provisions of
Section 3.09, at least 30 days but not more than 60 days before
a redemption date, the Company shall mail or cause to be mailed, by first-class
mail, a notice of redemption to each Holder whose Notes are to be redeemed at
its registered address.


 


The notice shall identify
the Notes to be redeemed, including CUSIP numbers, and shall state:


 


(a)  the redemption date;


 


(b)  the redemption price and the amount
of accrued and unpaid interest, if any, to be paid;


 


(c)  if any Note is being redeemed in
part, the portion of the principal amount of such Note to be redeemed and that,
after the redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;


 


44





















 


(d)  the name and address of the Paying
Agent;


 


(e)  that Notes called for redemption
must be surrendered to the Paying Agent to collect the redemption price;


 


(f)  that, unless the Issuers default in
making such redemption payment, interest on Notes called for redemption ceases
to accrue on and after the redemption date and the only remaining right of the
Holders is to receive payment of the redemption price upon surrender of the
applicable Note to the Paying Agent;


 


(g)  the paragraph of the Notes or Section of
this Indenture pursuant to which the Notes called for redemption are being
redeemed; and


 


(h)  that no representation is made as
to the correctness or accuracy of the CUSIP number, if any, listed in such
notice or printed on the Notes.


 


At the Company’s written
request, the Trustee shall give the notice of redemption in the Company’s name
and at its expense; provided, however,
that the Company shall have delivered to the Trustee, at least 45 days prior to
the redemption date, an Officer’s Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.


 


SECTION 3.04.                                         Effect of
Notice of Redemption.


 


Once notice of redemption is
mailed in accordance with Section 3.03, Notes called for redemption become
irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.


 


SECTION 3.05.                                         Deposit of
Redemption Price.


 


On or before 10:00 a.m.
New York City time on the redemption date, the Issuers shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price
of and accrued interest on all Notes to be redeemed on that date.  The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Issuers in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.


 


If the Issuers comply with
the provisions of the preceding paragraph, on and after the redemption date,
interest shall cease to accrue on the Notes or the portions of Notes called for
redemption.  If a Note is redeemed on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Note was registered at the close of business on such record date.  If any Note called for redemption shall not
be so paid upon surrender for redemption because of the failure of the Issuers
to comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case
at the rate provided in the Notes and in Section 4.01.


 


45





















 


SECTION 3.06.                                         Notes Redeemed in Part.


 


Upon surrender of a Note
that is redeemed in part, the Issuers shall issue and, upon the Company’s
written request, the Trustee shall authenticate for the Holder at the expense
of the Company a new Note equal in principal amount to the unredeemed portion
of the Note surrendered.


 


SECTION 3.07.                                         Optional
Redemption.


 


(a) 
On and after June 15, 2009, each Note shall be subject to redemption at
any time at the option of the Issuers, in whole or in part, upon not less than
30 nor more than 60 days’ notice, at the redemption prices (expressed as
percentages of principal amount thereof) set forth below plus accrued and
unpaid interest and Additional Interest thereon, if any, to the applicable redemption
date, if redeemed during the twelve-month period commencing on June 15 of
the years set forth below:


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2009

  	
   

  	
  105.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2010

  	
   

  	
  102.813

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2011 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


(b) 
At any time prior to June 15, 2008, the Issuers may on any one or more
occasions redeem up to 35% of the principal amount of Notes issued under this
Indenture at a redemption price of 111.25% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if
any, thereon to the redemption date, with the net cash proceeds of one or more
Equity Offerings; provided that at least 65% of the
aggregate principal amount of Notes issued under this Indenture remains outstanding
immediately after the occurrence of such redemption (excluding Notes held
directly or indirectly by the Issuers and their Affiliates); and provided further that such redemption shall occur within 90
days after the consummation of any such Equity Offering.


 


(c) 
At any time prior to June 15, 2009, the Issuers shall be entitled at their
option to redeem the Notes, in whole or in part, at a redemption price equal to
100% of the principal amount of the Notes redeemed plus the Applicable Premium
as of, and accrued and unpaid interest and Additional Interest thereon to, the
redemption date, subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date.


 


(d) 
Any redemption pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06.


 


SECTION 3.08.                                         Mandatory
Redemption.


 


The Issuers shall not be
required to make mandatory redemption payments with respect to the Notes.


 


SECTION 3.09.                                         Offer to
Purchase by Application of Net Proceeds Offer Amount.


 


In the event that the Issuers
shall be required to commence a Net Proceeds Offer pursuant to Section 4.10,
they shall follow the procedures specified below.


 


46





















 


The Net Proceeds Offer shall
remain open for a period of 20 Business Days following its commencement or such
longer period as may be required by applicable law (the “Offer Period”).  No later than five Business Days after the
termination of the Offer Period (the “Purchase Date”),
the Issuers shall purchase an aggregate principal amount of Notes and, if
required by the terms of any Indebtedness that ranks pari passu
with the Notes to contemporaneously make such Net Proceeds Offer to all holders
of such pari passu Indebtedness containing
provisions similar to those set forth in Section 4.10, such pari passu Indebtedness equal to the Net Proceeds Offer
Amount, on a pro rata basis to all Holders of Notes together with holders of
such pari passu Indebtedness except as
provided in Section 3.02 or, if Notes and any such pari passu
Indebtedness in an aggregate principal amount less than the Net Proceeds Offer
Amount have been tendered, all Notes validly tendered in response to the Net
Proceeds Offer.  Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.


 


If the Purchase Date is on
or after an interest record date and on or before the related interest payment
date, any accrued and unpaid interest shall be paid to the Person in whose name
a Note is registered at the close of business on such record date, and no
additional interest shall be payable to Holders who tender Notes pursuant to
the Net Proceeds Offer.


 


Upon the commencement of a
Net Proceeds Offer, the Company shall send, by first-class mail, a notice of
such Net Proceeds Offer to the Trustee and each of the Holders, with a copy to
the Trustee.  The notice shall contain
all instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Net Proceeds Offer.  The
Net Proceeds Offer shall be made to all Holders.  The notice, which shall govern the terms of
the Net Proceeds Offer, shall state:


 


(a)  that the Net Proceeds Offer is
being made pursuant to this Section 3.09 and Section 4.10 and the
length of time the Net Proceeds Offer shall remain open;


 


(b)  the Net Proceeds Offer Amount, the
purchase price and the Purchase Date;


 


(c)  that any Note not validly tendered
or accepted for payment shall continue to accrue interest;


 


(d)  that, unless the Issuers default in
making such payment, any Note accepted for payment pursuant to the Net Proceeds
Offer shall cease to accrue interest on and after the Purchase Date and the
only remaining right of the Holder is to receive payment of the purchase price
upon surrender of the applicable Note to the Paying Agent;


 


(e)  that Holders electing to have a
portion of a Note purchased pursuant to a Net Proceeds Offer may only elect to
have such Note purchased in integral multiples of $1,000;


 


(f)  that Holders electing to have a
Note purchased pursuant to any Net Proceeds Offer shall be required to
surrender the Note, with the form entitled “Option of Holder to Elect Purchase”
on the reverse of the Note completed, or transfer by book-entry transfer, to
the Issuers, a depositary, if appointed by the Company, or a Paying Agent at
the address specified in the notice at least three days before the Purchase
Date;


 


(g)  that Holders shall be entitled to
withdraw their election if the Issuers, the depositary or the Paying Agent, as
the case may be, receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase and
a statement that such Holder is withdrawing his election to have such Note
purchased;


 


47





















 


(h)  that, if the aggregate principal
amount of Notes surrendered by Holders and any pari passu
Indebtedness subject to such Net Proceeds Offer surrendered by the holders
thereof exceeds the Offer Amount, the Issuers shall select the Notes to be
purchased on a pro rata basis (based on amounts
tendered together with any such pari passu
Indebtedness and with such adjustments as may be deemed appropriate by the Issuers
so that only Notes in denominations of $1,000, or integral multiples thereof,
shall be purchased); and


 


(i)  that Holders whose Notes were
purchased only in part shall be issued a new Note or Notes in principal amount
equal to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer) in the name of the Holder thereof upon cancellation of the
original Note.


 


On or before the Purchase
Date, the Issuers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary and, except as
provided in Section 3.02, the Net Proceeds Offer Amount of Notes or
portions thereof and any pari passu
Indebtedness subject to such Net Proceeds Offer validly tendered pursuant to
the Net Proceeds Offer, or if Notes and any such pari passu
Indebtedness representing less than the Net Proceeds Offer Amount has been
validly tendered, all Notes or portions thereof validly tendered, and shall
deliver to the Trustee an Officer’s Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with
the terms of this Section 3.09.  The
Issuers, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by the Issuers for purchase, and the
Issuers shall promptly issue a new Note, and the Trustee, upon written request
from the Issuers shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered.  Any Note not so accepted
shall be promptly mailed or delivered by the Issuers to the Holder
thereof.  The Company shall publicly
announce the results of the Net Proceeds Offer on the Purchase Date.


 


Other than as specifically
provided in this Section 3.09, any purchase pursuant to this Section 3.09
and Section 4.10 shall be made pursuant to the provisions of Sections 3.01
through 3.06.


 


The Issuers shall comply, to
the extent applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in connection with
the repurchase of Notes pursuant to this Section 3.09 or Section 4.10.  To the extent that the provisions of any
securities laws or regulations conflict with this Section 3.09 or Section 4.10,
the Issuers shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section 3.09
or Section 4.10.


 


ARTICLE
4


 


COVENANTS


 


SECTION 4.01.                                         Payment of
Notes.


 


The Issuers, jointly and
severally, shall pay or cause to be paid the principal amount, premium, if any,
and interest and Additional Interest, if any, on the Notes on the dates and in
the manner provided in the Notes and this Indenture.  Principal amount, premium, if any, and
interest and Additional Interest, if any, shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Issuers in immediately available funds and designated for and sufficient to pay
all principal amount, premium, if


 


48





















 


any,
and interest and Additional Interest, if any, then due.  The Issuers shall pay all Additional
Interest, if any, in the same manner on the dates and in the amounts set forth
in the Registration Rights Agreement. 
All references in this Indenture, in any context, to any interest or
other amount payable on or with respect to the Notes shall be deemed to include
any Additional Interest.


 


SECTION 4.02.                                         Maintenance
of Office or Agency.


 


The Issuers shall maintain
in the Borough of Manhattan, The City of New York, an office or agency (which
may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar)
where Notes may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Issuers
in respect of the Notes and this Indenture may be served.  The Issuers shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Issuers
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.


 


The Issuers may also from
time to time designate one or more other offices or agencies where the Notes
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Issuers
of their obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes.  The Issuers shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


The Issuers hereby designate
the Corporate Trust Office of the Trustee as one such office or agency of the Issuers
in accordance with Section 2.03.


 


SECTION 4.03.                                         Reports to
Holders.


 


Whether or not required by the rules and regulations of the
SEC, so long as any Notes are outstanding, the Company shall furnish to the
Holders of Notes:


 


(a) 
all quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Issuers
were required to file such forms, including a “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” that describes the
financial condition and results of operations of the Company and its
consolidated Subsidiaries (showing in reasonable detail, either on the face of
the financial statements or in the footnotes thereto, the financial condition
and results of operations of the Company and its Restricted Subsidiaries
separate from the financial condition and results of operations of the
Unrestricted Subsidiaries of the Company) and, with respect to the annual
information only, a report thereon by the Company’s certified independent
accountants; and


 


(b) 
all current reports that would be required to be filed with the SEC on Form 8-K
if the Issuers were required to file such reports, in each case, within the
time periods specified in the SEC’s rules and regulations,


 


in each case, on or prior to
the respective dates by which the Issuers would have been required to file such
documents with the SEC if the Company were subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provisions thereto; provided, however, that
the Issuers shall not be so obligated to file such reports with the SEC if the
SEC does not permit such filing, in which event the Issuers shall make
available such information to prospective purchasers of Notes, in addition to
providing such information to the Trustee and the Holders of Notes, in each
case within 15 days after the time the Issuers would be


 


49





















 


required to file such
information with the SEC if it did permit such filing.  The Issuers shall also post such information
on the Company’s website.


 


Notwithstanding the
foregoing:


 


(1)  the Issuers shall
be deemed to have furnished all reports required to be provided pursuant to
this covenant to the Trustee and the Holders of Notes if the Issuers have filed
such reports with the SEC via the EDGAR filing system and such reports are
publicly available;


 


(2)  the contents of any reports required to be
provided pursuant to this Section 4.03 prior to the effectiveness of the
Exchange Offer Registration Statement or Shelf Registration Statement,
whichever occurs first, shall be limited in scope to the type of disclosure set
forth in the Offering Circular (which, for the avoidance of doubt, excludes all
historical financial statements and pro forma financial information related to
the acquisition opportunity disclosed in the Offering Circular);


 


(3)  the Issuers shall
not be required to furnish any information, certifications or reports required
by Items 307 or 308 of Regulation S-K prior to the effectiveness of the
Exchange Offer Registration Statement or Shelf Registration Statement;


 


(4)  the reporting requirements shall be deemed satisfied
prior to the commencement of the Registered Exchange Offer or the effectiveness
of the Shelf Registration Statement by the filing with the SEC of the Exchange
Offer Registration Statement or Shelf Registration Statement in accordance with
the provisions of the Registration Rights Agreement, and any amendments
thereto, with such financial information that satisfies Regulation S-X of the
Securities Act and such Registration Statement or amendments thereto are filed
at times that otherwise satisfy the time requirements set forth in the
Registration Rights Agreement; and


 


(5)  in the event that Parent
or any other direct or indirect parent company of the Company is or becomes a
Guarantor of the Notes, the Company may satisfy its obligations under this Section 4.03
with respect to financial information relating to the Company by furnishing
financial information relating to Parent or such other direct or indirect
parent company, as applicable; provided that
such financial information is accompanied by consolidating information that
explains in reasonable detail the differences between the information relating
to Parent or such other direct or indirect parent company, as applicable, and
any of its Subsidiaries other than the Company and its Subsidiaries, on the one
hand, and the information relating to the Company, the Guarantors and the other
Subsidiaries of the Company on a standalone basis, on the other hand.


 


In addition, following the
consummation of the Registered Exchange Offer, whether or not required by the rules and
regulations of the SEC, the Issuers shall file a copy of all such information
and reports with the SEC for public availability within the time periods
specified in the SEC’s rules and regulations (unless the SEC will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon request.  The Issuers shall at all times comply with
TIA § 314(a).  In addition, for so
long as any Notes remain outstanding, the Issuers shall furnish to the Holders
and to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


50





















 


SECTION 4.04.                                         Compliance
Certificate.


 


(a) 
The Issuers and each Guarantor (to the extent that such Guarantor is so required
under the TIA) shall deliver to the Trustee, within 90 days after the end of
each fiscal year, an Officer’s Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officer with a view to
determining whether the Issuers have kept, observed, performed and fulfilled their
obligations under this Indenture, and further stating, as to the Officer
signing such certificate, that to the best of his or her knowledge the Issuers
have kept, observed, performed and fulfilled each and every covenant contained
in this Indenture and are not in default in the performance or observance of
any of the terms, provisions and conditions of this Indenture (or, if a Default
shall have occurred, describing all such Defaults of which he or she may have
knowledge and what action the Issuers are taking or proposes to take with respect
thereto).  For purposes of this
paragraph, such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture.


 


(b) 
So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, the year-end financial statements
delivered pursuant to Section 4.03 above shall be accompanied by a written
statement of the Company’s independent public accountants (who shall be a firm
of established national reputation) that in making the examination necessary
for certification of such financial statements, nothing has come to their
attention that would lead them to believe that the Issuers have violated any
provisions of Article 4 or Article 5 or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.


 


(c) 
The Issuers shall, so long as any of the Notes are outstanding, deliver to the
Trustee, forthwith upon any Officer becoming aware of any Default, an Officer’s
Certificate specifying such Default and what action the Issuers are taking or
propose to take with respect thereto.


 


SECTION 4.05.                                         Payment of
Taxes and Other Claims.


 


The Company shall pay, and
shall cause each of its Subsidiaries to pay, prior to delinquency, (a) all
material taxes, assessments and governmental levies levied or imposed upon (i) the
Company or any such Subsidiary, (ii) the income or profits of any such
Subsidiary which is a corporation or (iii) the property of the Company or
any such Subsidiary and (b) all material lawful claims for labor,
materials and supplies that, if unpaid, could reasonably be expected by law to
become a lien upon the property of the Company or any such Subsidiary, except
such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.


 


SECTION 4.06.                                         Stay,
Extension and Usury Laws.


 


The Issuers and each of the
Guarantors covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Issuers and each of the Guarantors (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.


 


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SECTION 4.07.                                         Limitation
on Restricted Payments.


 


(a) 
The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries
to, directly or indirectly:


 


(1)  declare or pay any dividend or make
any distribution (other than dividends or distributions payable in Qualified
Capital Stock of the Company) on or in respect of shares of the Company’s
Capital Stock to holders of such Capital Stock (including any payment in
connection with any merger or consolidation);


 


(2)  purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Company, Parent or any other
direct or indirect parent of the Company or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock;


 


(3)  make any principal payment on,
purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for
value, prior to any scheduled final maturity, scheduled repayment or scheduled
sinking fund payment, any Subordinated Obligations of any Issuer or any
Guarantor (other than (i) from the Company or a Restricted Subsidiary of
the Company or (ii) the payment, purchase, defeasance, redemption, prepayment,
decrease, acquisition or retirement for value of any such Subordinated
Obligations in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case, due within one year of the date of
such payment, purchase, defeasance, redemption, prepayment, decrease,
acquisition or retirement); or


 


(4)  make any Investment (other than
Permitted Investments),


 


(each of the foregoing
actions set forth in clauses (1), (2), (3) and (4) being referred to
as a “Restricted Payment”), unless at the time
of such Restricted Payment or immediately after giving effect thereto:


 


(i)  no Default has
occurred and is continuing or would occur as a consequence of such Restricted
Payment;


 


(ii)  after giving pro
forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, the Company would have been
able to incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to the proviso of Section 4.09; and


 


(iii)  the aggregate
amount of Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Issue Date (other than Restricted Payments made pursuant to Sections
4.07(b)(2) through (9) and Sections 4.07(b)(11) and (12)) (the amount
expended for such purposes, if other than in cash, being the fair market value
of such property) is less than the sum, without duplication, of:


 


(v)  50% of the cumulative Consolidated Net
Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of
such loss) of the Company earned from the beginning of the first fiscal quarter
commencing after the Issue Date to the end of the most recent fiscal quarter
ending at least 45 days prior to the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single
accounting period); plus


 


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(w)  100% of
the aggregate net cash proceeds received by the Company from any Person (other
than a Subsidiary of the Company) from the issuance and sale subsequent to the
Issue Date and on or prior to the Reference Date of Qualified Capital Stock of
the Company or other securities of the Company that have been converted into such
Qualified Capital Stock; plus


 


(x)  without
duplication of any amounts included in Section 4.07(a)(iii)(w), 100% of
the aggregate net cash proceeds of any equity contribution received by the Company
from a holder of the Company’s Capital Stock; plus


 


(y)  100% of
the aggregate net cash proceeds of any (A) sale or other disposition of
any Investment (other than a Permitted Investment) made by the Company and its
Restricted Subsidiaries subsequent to the Issue Date or (B) to the extent
not included in Consolidated Net Income, dividend from, or the sale of the stock
of, an Unrestricted Subsidiary of the Company made subsequent to the Issue
Date; plus


 


(z)  to the
extent that any Unrestricted Subsidiary of the Company designated as such after
the Issue Date is redesignated as a Restricted Subsidiary of the Company, or
any Unrestricted Subsidiary of the Company merges into or consolidates with the
Company or any of its Restricted Subsidiaries, in each case after the Issue
Date, the portion (proportionate to the Company’s equity interest in such
Unrestricted Subsidiary) of the fair market value of the net assets of such
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated
a Restricted Subsidiary of the Company; provided, however, that the foregoing amount shall not exceed the
amount of Investments (excluding Permitted Investments) previously made (and
treated as a Restricted Payment) by the Company or any Restricted Subsidiary of
the Company in such Unrestricted Subsidiary.


 


(b) 
Notwithstanding the foregoing, Section 4.07(a) shall not prohibit:


 


(1)  the payment of any dividend or the
consummation of any irrevocable redemption within 60 days after the date of
declaration of such dividend or notice of such redemption if the dividend or
payment of the redemption price, as the case may be, would have been permitted
on the date of declaration or notice;


 


(2)  if no Default has occurred and is
continuing or shall occur as a consequence thereof, the making of any
Restricted Payment in exchange for, or out of the net cash proceeds of a
substantially concurrent sale (other than to a Subsidiary of the Company or an
employee stock ownership plan established by the Company or any Subsidiary of
the Company or to a trust established by the Company or any of its Subsidiaries
for the benefit of their employees) of, Qualified Capital Stock of the Company
or from a substantially concurrent cash contribution of common equity capital
to the Company; provided that the amount of any
such net cash proceeds that are utilized for any such Restricted Payment will
be excluded from the calculation of amounts under Section 4.07(a)(iii)(w);


 


(3)  if no Default has occurred and is
continuing or shall occur as a consequence thereof, the repurchase, redemption,
defeasance or other acquisition of any Subordinated Obligations of the Issuers
or a Guarantor through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) of
Refinancing Indebtedness of such Person which is permitted to be incurred under
this Indenture;


 


53





















 


(4)  if no Default has occurred and is
continuing or shall occur as a consequence thereof, the declaration and payment
of dividends to holders of any class or series of Disqualified Capital Stock issued
after the Issue Date; provided that,
at the time of such issuance of Disqualified Capital Stock, the Company, after
giving effect to such issuance of Disqualified Capital Stock on a pro forma
basis, would have been able to incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to the proviso of Section 4.09;


 


(5)  if no Default has occurred and is
continuing or shall occur as a consequence thereof, the redemption or
repurchase of the Company’s common equity or options in respect thereof (or the
Capital Stock of Parent or any other direct or indirect parent of the Company),
in each case in connection with the repurchase provisions of employee stock
option or stock purchase agreements, shareholder agreements or other agreements
(in each case to which the Company is a party) to compensate officers,
directors or management employees; provided that
all such redemptions or repurchases pursuant to this clause (5) shall
not exceed $1.0 million (with unused amounts in any fiscal year being carried
over to succeeding fiscal years subject to a maximum of $2.5 million in
any fiscal year) in any fiscal year (which amounts shall be increased by the
amount of any net cash proceeds received from the sale since the Issue Date of
Capital Stock (other than Disqualified Capital Stock) to officers, directors or
members of management of the Company that have not otherwise been applied to
the payment of Restricted Payments pursuant to the terms of Section 4.07(a)(iii) and
by the amount of any cash proceeds received since the Issue Date of any “key-man”
life insurance policies that are used to make such redemptions or repurchases);
provided, further, that the cancellation
of Indebtedness owing to the Company from officers, directors or members of
management of the Company or any of its Restricted Subsidiaries in connection
with any repurchase of Capital Stock of the Company, Parent or any other direct
or indirect parent of the Company (or warrants or options or rights to acquire
such Capital Stock) will not be deemed to constitute a Restricted Payment under
this Indenture; and provided further
that the amount available pursuant to this clause (5) may be
increased by an amount equal to the sum of (A) the aggregate cash proceeds
received by the Company, or Parent or such other direct or indirect parent to
the extent such cash proceeds are contributed to the common equity capital of
the Company, during that calendar year from any reissuance of Capital Stock by
the Company, Parent or any other direct or indirect parent of the Company to
officers, directors and employees of the Company and its Restricted
Subsidiaries, plus (B) any cash proceeds paid to the Company in connection
with the issuance or exercise of any management or employee Capital Stock so
acquired; and provided further, however, that the amount of any such cash proceeds that are
utilized for any such Restricted Payment pursuant to this clause (5) will
be excluded from the calculation of amounts under Sections 4.07(a)(iii)(w) and
(a)(iii)(x);


 


(6)  repurchases of Capital Stock deemed
to occur upon the exercise of stock options if such Capital Stock represents a
portion of the exercise price thereof and repurchases of Capital Stock deemed
to occur upon the withholding of a portion of the Capital Stock granted or
awarded to an officer, director or employee to pay for the taxes payable by
such Person upon such grant or award;


 


(7)  (A)  all payments and
transactions provided for or contemplated by the Recapitalization Agreement
(including the related financings), as the same was in effect on June 3,
2005, to the extent such payments or transactions were made or consummated on June 3,
2005 or otherwise in connection with the Recapitalization pursuant to the
Recapitalization Agreement (including related financings) and (B) (i) the
declaration and payment of dividends or the making of any other Restricted
Payment with the net proceeds received by the Company from the sale of the Notes
on the Issue Date as described in the Offering Circular and (ii) all
payments and


 


54





















 


transactions made or consummated on the Issue Date in connection with
the corporate reorganization of Parent and its Subsidiaries as described in the
Offering Circular;


 


(8)  distributions or payments of
Receivable Fees and performance of any other obligations of the Company or any
of its Restricted Subsidiaries pursuant to Standard Securitization
Undertakings;


 


(9)  any purchase or repayment of any
Subordinated Obligation upon a Change of Control or an Asset Sale to the extent
required by the agreement governing such Subordinated Obligation but only
if:  (a) in the case of a Change of
Control, the Issuers shall have complied with all of their obligations under Section 4.15
and purchased all the Notes tendered pursuant to the Change of Control Offer
required thereby prior to purchasing or repaying such Subordinated Obligation
or (b) in the case of an Asset Sale, the Issuers shall have applied the
Net Cash Proceeds from such Asset Sale in accordance with Section 4.10; provided that (i) in the case of clause (a) and
(b), the purchase price (stated as a percentage of principal amount or issue
price plus accrued original discount, if less) of such Subordinated Obligation
shall not be greater than the price (stated as a percentage of principal
amount) of the Notes pursuant to any Change of Control Offer or Net Proceeds
Offer, and (ii) in the case of an Asset Sale, the aggregate amount of such
Subordinated Obligation that the Issuers may purchase or repay shall not exceed
the amount of unutilized Net Cash Proceeds, if any, remaining after the Issuers
have purchased all Notes tendered pursuant to such Net Proceeds Offer;


 


(10)  if no Default has occurred and is
continuing or shall occur as a consequence thereof, distributions to Iron
Merger Partnership to pay administrative and other operating expenses relating
to or resulting from Iron Merger Partnership’s direct or indirect ownership of
Common Stock of the Company in an aggregate amount not to exceed $500,000 per fiscal
year;


 


(11)  Permitted
Payments to Parent;


 


(12)  the
repurchase, redemption or other acquisition for value of Capital Stock of the
Company, Parent or any other direct or indirect parent of the Company
representing fractional shares of such Capital Stock in connection with a
merger, consolidation, amalgamation or other combination involving the Company,
Parent or any other direct or indirect parent of the Company; and


 


(13)  if
no Default has occurred and is continuing or shall occur as a consequence thereof,
other Restricted Payments in an aggregate amount not to exceed
$10.0 million.


 


(c) 
In determining the aggregate amount of Restricted Payments made subsequent to
the Issue Date in accordance with Section 4.07(a)(iii), (1) amounts expended
pursuant to clauses (1), (10) and (13) of Section 4.07(b) shall
be included in such calculation and (2) amounts expended pursuant to
clauses (2) through (9) and clauses (11) and (12) of Section 4.07(b) shall
be excluded from such calculation.


 


SECTION 4.08.                                         Limitation
on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.


 


The Company shall not, and
shall not cause or permit any of its Restricted Subsidiaries to, directly or
indirectly, create or otherwise cause or permit to exist or become effective
any consensual encumbrance or consensual restriction on the ability of any
Restricted Subsidiary of the Company to:


 


55





















 


(1)  pay dividends or make any other
distributions on or in respect of its Capital Stock;


 


(2)  make loans or advances or pay any
Indebtedness or other obligation owed to the Company or any other Restricted
Subsidiary of the Company; or


 


(3)  transfer any of its property or
assets to the Company or any other Restricted Subsidiary of the Company,


 


except for such encumbrances
or restrictions existing under or by reason of:


 


(A)  applicable law, rule, regulation or order;


 


(B)  the Notes or this Indenture;


 


(C)  non-assignment provisions of any contract or any lease of any
Restricted Subsidiary of the Company entered into in the ordinary course of
business;


 


(D)  any instrument governing Acquired Indebtedness or Capital
Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired;


 


(E)  agreements existing on the Issue Date to the extent and in
the manner such agreements are in effect on the Issue Date, including the ABL
Credit Facility and the Senior Subordinated Notes Indenture;


 


(F)  restrictions on the transfer of assets subject to any Lien
permitted under this Indenture imposed by the holder of such Lien;


 


(G)  with respect to clause (3) above only, restrictions
imposed by any agreement to sell assets permitted under this Indenture to any
Person pending the closing of such sale;


 


(H)  any agreement or instrument governing Capital Stock of any
Person that is acquired if such agreement or instrument was entered into prior
to the date on which such Person was acquired and not in contemplation of such
Person being acquired;


 


(I)  any Securitization Note or
other Indebtedness or other contractual requirements of a Securitization Entity
in connection with a Qualified Securitization Transaction; provided
that such restrictions apply only to such Securitization Entity;


 


(J)  other Indebtedness
outstanding on the Issue Date or permitted to be issued or incurred under this
Indenture; provided that any such encumbrances and
restrictions with respect to the Restricted Subsidiaries of the Company
contained in any agreement governing such Indebtedness are not materially more
restrictive with respect to such Restricted Subsidiaries (when taken as a whole)
than the encumbrances and restrictions contained in agreements in effect on the
Issue Date, or, in the case of any Credit Facility, those contained in the ABL
Credit Facility, and the Board of Directors of the Company determines in good
faith that any such encumbrance or restriction included in the agreement
governing such Indebtedness will not materially adversely affect the


 


56





















 


Company’s
ability to make timely payment of interest, premium (if any) or principal on
the Notes when due;


 


(K)  restrictions on cash or
other deposits or net worth imposed by customers under contracts entered into
in the ordinary course of business;


 


(L)  purchase money obligations
for property acquired in the ordinary course of business and Capital Lease
Obligations that impose restrictions on the property purchased or leased of the
nature described in clause (3) above;


 


(M)  any agreement for the sale
or other disposition of all or substantially all of the Capital Stock of a Restricted
Subsidiary of the Company (other than Finance Corp. and Neff Rental) that
restricts distributions by that Restricted Subsidiary pending the sale or other
disposition; provided that at the time such
agreement is entered into, the Board of Directors of the Company determines in
good faith that any such encumbrance or restriction included in such agreement
will not materially affect the Company’s ability to make timely payment of
interest, premium (if any) or principal on the Notes when due;


 


(N)  provisions limiting the
disposition or distribution of assets or property in joint venture agreements,
asset sale agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements entered into with the approval of the Board of Directors
of the Company, which limitation is applicable only to the assets that are the
subject of such agreements; and


 


(O)  any encumbrances or
restrictions imposed by any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (A) through
(N) above; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Board of
Directors of the Company (evidenced by a Board Resolution) whose judgment shall
be conclusively binding, not materially more restrictive, taken as a whole,
with respect to such dividend and other payment restrictions than those contained
in the dividend or other payment restrictions prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or refinancing.


 


SECTION 4.09.                                         Limitation
on Incurrence of Additional Indebtedness.


 


The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, issue, assume, guarantee, acquire, become liable, contingently
or otherwise, with respect to, or otherwise become responsible for payment of
(collectively, “incur”) any Indebtedness (other
than Permitted Indebtedness) and the Company will not permit any of its
Restricted Subsidiaries to issue any Preferred Stock; provided,
however, that the Company or any of its Restricted Subsidiaries may
incur Indebtedness (including Acquired Indebtedness) and Restricted
Subsidiaries of the Company (other than Finance Corp.) may issue Preferred
Stock, in each case if on the date of the incurrence of such Indebtedness or
issuance of such Preferred Stock, after giving effect thereto on a pro forma
basis, the Consolidated Fixed Charge Coverage Ratio of the Company would have
been greater than 2.0 to 1.0 if such Indebtedness is incurred or Preferred
Stock is issued prior to July 8, 2007, or 2.25 to 1.0 if such Indebtedness
is incurred or Preferred Stock is issued thereafter.


 


57





















 


SECTION 4.10.                                         Limitation
on Asset Sales.


 


The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, consummate an Asset
Sale unless:


 


(1)  the Company or the applicable
Restricted Subsidiary, as the case may be, receives consideration at the time
of such Asset Sale at least equal to the fair market value of the assets sold
or otherwise disposed of;


 


(2)  at least 75% of the consideration
received by the Company or the applicable Restricted Subsidiary, as the case
may be, from such Asset Sale shall be in the form of cash or Cash Equivalents
and shall be received at the time of such disposition; provided
that the following shall be deemed to be cash solely for purposes of this
clause (2):


 


(A)  liabilities (as shown on the Company’s or such Restricted
Subsidiary’s most recent balance sheet) of the Company or any such Restricted
Subsidiary (other than liabilities that are by their terms subordinated to the
Notes) that are assumed by the transferee of any such assets and for which the
Company and its Restricted Subsidiaries receive a written release from the
creditors with respect to such liabilities;


 


(B)  any promissory notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash within 180
days of the receipt thereof (to the extent of the cash received); and


 


(C)  any Designated Noncash Consideration received by the Company
or any of its Restricted Subsidiaries in such Asset Sale having an aggregate
fair market value, when taken together with all other Designated Noncash
Consideration received pursuant to this clause (C) that is at that
time outstanding, not to exceed 15% of Total Assets at the time of the receipt
of such Designated Noncash Consideration (x) with the fair market value of
each item of Designated Noncash Consideration being measured at the time
received and without giving effect to subsequent changes in value and (y) with
respect to any Designated Noncash Consideration in excess of $15.0 million, the
determination by the Board of Directors of the Company of the fair market value
of such Designated Noncash Consideration must be based upon an opinion or
appraisal issued by an Independent Qualified Party; and


 


(3)  upon the consummation of an Asset
Sale, the Company shall apply, or cause such Restricted Subsidiary to apply,
the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt
thereof:


 


(A)  to prepay, repay, redeem or purchase Priority Lien Debt of
the Company or any Guarantor (in each case, other than Indebtedness owed to the
Company or an Affiliate of the Company) and, in the case of any such
prepayment, repayment, redemption or purchase of Priority Lien Debt under any
revolving Credit Facility, cause a corresponding permanent reduction in the
availability and commitments under such revolving Credit Facility in the amount
of the principal prepaid, repaid, redeemed or purchased,


 


(B)  to reinvest in Productive Assets, or


 


58





















 


(C)  a combination of prepayment and investment permitted by the
foregoing clauses (A) and (B);


 


provided that
in the case of clause (3)(B) above a binding commitment to reinvest in
Productive Assets shall be treated as a permitted application of the Net Cash
Proceeds from the date of such commitment to the 545th day after receipt of the
Net Cash Proceeds of the applicable Asset Sale so long as the Company or such
Restricted Subsidiary enters into such commitment with the good faith
expectation that such Net Cash Proceeds will be applied to satisfy such
commitment on or prior to the 545th day after receipt of the Net Cash Proceeds
of the applicable Asset Sale (an “Acceptable Commitment”)
and, in the event such Acceptable Commitment is later canceled or terminated
for any reason before such Net Cash Proceeds are so applied, the Company or
such Restricted Subsidiary enters into another Acceptable Commitment within six
months of such cancellation or termination of the prior binding commitment; provided further, however, that the Company or such
Restricted Subsidiary may only rely on the six-month extension provided for
entering into an Acceptable Commitment on one occasion with respect to any
Asset Sale (and the failure to reinvest in Productive Assets prior to the end
of such six-month period shall mean the Net Cash Proceeds shall not be treated
as having been applied pursuant to clause (3)(B) above).


 


Pending the
final application of any such Net Cash Proceeds, the Company or such Restricted
Subsidiary may temporarily reduce Indebtedness under a revolving Credit
Facility, if any, or otherwise invest such Net Cash Proceeds in Cash
Equivalents.  On the 366th day (as may be
extended pursuant to the proviso in the preceding paragraph) after an Asset
Sale or such earlier date, if any, as the Board of Directors of the Company or
of such Restricted Subsidiary determines not to apply the Net Cash Proceeds
relating to such Asset Sale as set forth in clause (3)(A), (3)(B) or
(3)(C) of the preceding paragraph (each, a “Net Proceeds
Offer Trigger Date”), such aggregate amount of Net Cash Proceeds
which have not been so applied on or before such Net Proceeds Offer Trigger
Date (each, a “Net Proceeds Offer Amount”) shall
be applied by the Issuers to make an offer to purchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds
Offer Payment Date”) not less than 30 nor more than 60 days
following the applicable Net Proceeds Offer Trigger Date, from all Holders on a
pro rata basis, the maximum amount of
Notes that may be purchased with the Net Proceeds Offer Amount at a price equal
to 100% of the principal amount of the Notes to be purchased, plus accrued and
unpaid interest thereon, if any, to the date of purchase; provided,
however, that if at any time any noncash consideration (including
any Designated Noncash Consideration) received by the Company or any Restricted
Subsidiary of the Company, as the case may be, in connection with any Asset
Sale is converted into or sold or otherwise disposed of for cash (other than
interest received with respect to any such noncash consideration), then such
conversion or disposition shall be deemed to constitute an Asset Sale hereunder
and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10;
provided further that the Issuers may,
if required by the terms of any Indebtedness that ranks pari passu with
the Notes, contemporaneously make such Net Proceeds Offer to all holders of
such pari passu Indebtedness containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem such Indebtedness with the proceeds of sales of assets,
in which case the Net Proceeds Offer Amount will be paid on a pro rata basis to
all Holders of Notes together with holders of such other pari passu
Indebtedness. Notwithstanding the foregoing, if a Net Proceeds Offer
Amount is less than $15.0 million, the application of the Net Cash Proceeds
constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be
deferred until such time as such Net Proceeds Offer Amount plus the aggregate
amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds
Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all
Asset Sales by the Company and its Restricted Subsidiaries aggregate at least
$15.0 million, at which time the Issuers shall apply all Net Cash Proceeds
constituting all Net Proceeds Offer Amounts that have been so deferred to make
a Net Proceeds


 


59





















 


Offer
(the first date the aggregate of all such deferred Net Proceeds Offer Amounts
is equal to $15.0 million or more shall be deemed to be a Net Proceeds Offer
Trigger Date).


 


Each Net Proceeds Offer will
be mailed to the record Holders as shown on the register of Holders within 30
days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee,
and shall comply with the procedures set forth in Section 3.09.  To the extent that the aggregate amount of
Notes and any pari passu Indebtedness subject
to such Net Proceeds Offer tendered pursuant to a Net Proceeds Offer is less
than the Net Proceeds Offer Amount, the Issuers may use any remaining Net
Proceeds Offer Amount for general corporate purposes or for any other purpose
not prohibited by this Indenture.  Upon
completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall
be reset at zero.


 


The Issuers will comply with
the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of Notes pursuant
to a Net Proceeds Offer.  To the extent
that compliance by the Issuers with the provisions of any securities laws or
regulations conflicts with the provisions of this Section 4.10, such
compliance shall be deemed not to be a breach of the Issuers’ obligations under
this Section 4.10.


 


SECTION 4.11.                                         Limitation
on Transactions with Affiliates.


 


(a) 
The Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, enter into or permit to occur any transaction or series
of related transactions (including the purchase, sale, lease or exchange of any
property or the rendering of any service) with, or for the benefit of, any of
its Affiliates (an “Affiliate Transaction”),
other than Affiliate Transactions on terms that are not materially less
favorable than those that might reasonably have been obtained in a comparable
transaction at such time on an arm’s-length basis from a Person that is not an
Affiliate of the Company or such Restricted Subsidiary; provided,
however, that:


 


(i)  for an Affiliate Transaction with an aggregate value of
greater than or equal to $7.5 million but less than $15.0 million, at the
Company’s option, either:


 


(A)  a majority of the disinterested members of the Board of
Directors of the Company shall determine in good faith that such Affiliate
Transaction is on terms that are not materially less favorable than those that
might reasonably have been obtained in a comparable transaction at such time on
an arm’s-length basis from a Person that is not an Affiliate of the Company; or


 


(B)  the Board of Directors of the Company or any such Restricted
Subsidiary party to such Affiliate Transaction shall obtain an opinion from an
Independent Qualified Party that such Affiliate Transaction is fair, from a financial
standpoint, to the Company and its Restricted Subsidiaries or is on terms that
are not materially less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm’s-length basis from
a Person that is not an Affiliate of the Company; and


 


(2)  for an Affiliate Transaction with
an aggregate value of $15.0 million or more, the Board of Directors of the
Company or any such Restricted Subsidiary party to such Affiliate Transaction
shall obtain an opinion from an Independent Qualified Party that such Affiliate
Transaction is fair, from a financial standpoint, to the Company and its
Restricted Subsidiaries or is on terms that are not materially less favorable
than those that might reasonably have been


 


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obtained in a comparable transaction at such time on an arm’s-length
basis from a Person that is not an Affiliate of the Company.


 


(b) 
The restrictions set forth in Section 4.11(a) shall not apply to:


 


(1)  reasonable fees and compensation
paid to, and indemnity provided on behalf of, officers, directors, employees or
consultants of Parent or any other direct or indirect parent of the Company or
any Restricted Subsidiary of the Company as determined in good faith by the
Board of Directors of the Company or senior management of the Company;


 


(2)  transactions exclusively between or
among the Company and any of its Restricted Subsidiaries or exclusively between
or among such Restricted Subsidiaries, provided such
transactions are not otherwise prohibited by this Indenture;


 


(3)  any agreement as in effect as of
the Issue Date or any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) in any replacement agreement
thereto so long as any such amendment or replacement agreement is not more
disadvantageous to the Holders in any material respect than the original
agreement as in effect on the Issue Date;


 


(4)  Investments (other than Permitted
Investments) or Restricted Payments made in compliance with Section 4.07;


 


(5)  transactions effected as part of a
Qualified Securitization Transaction;


 


(6)  the payment of customary consulting
and advisory fees (but excluding management fees) and related expenses to the
Permitted Holders and their Affiliates made pursuant to any financial advisory,
financing, underwriting or placement agreement or in respect of other investment
banking activities, including in connection with acquisitions or divestitures
which are approved by the Board of Directors of the Company or such Restricted
Subsidiary in good faith;


 


(7)  the payment of (x) an annual
management fee to the Permitted Holders and their Affiliates in an amount not
to exceed $1.5 million in any fiscal year; provided
that no Event of Default has occurred and is continuing at the time of any such
payment and (y) reasonable out-of pocket expenses and indemnification
payments payable pursuant to the Management Services Agreement;


 


(8)  loans to employees or consultants
that are approved by the Board of Directors of the Company in good faith;


 


(9)  sales of Qualified Capital Stock;


 


(10)  the existence of, or the
performance by the Company or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders agreement (including any
registration rights agreement or purchase agreement related thereto) to which
it is a party as of the Issue Date and any similar agreements which it may
enter into thereafter; provided, however,
that the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of obligations under, any future amendment to any such
existing agreement or under any similar agreement entered into after the Issue
Date shall only be permitted by this clause (10) to the extent that
the terms of any such amendment or new agreement are not disadvantageous to the
Holders of the Notes in any material respect;


 


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(11)  (A) all
payments and transactions provided for or contemplated by the Recapitalization
Agreement (including the related financings), as the same was in effect on June 3,
2005, to the extent such payments or transactions were made or consummated on
the Issue Date or otherwise in connection with the Recapitalization pursuant to
the Recapitalization Agreement (including the related financings) and (B) (i) the
declaration and payment of dividends or the making of any other Restricted
Payment with the net proceeds received by the Company from the sale of the Notes
on the Issue Date as described in the Offering Circular and (ii) all
payments and transactions made or consummated on the Issue Date in connection
with the corporate reorganization of Parent and its Subsidiaries as described
in the Offering Circular;


 


(12)  distributions
to Iron Merger Partnership to pay administrative and other operating expenses
relating to or resulting from Iron Merger Partnership’s ownership of Common
Stock of the Company in an aggregate amount not to exceed $500,000 per fiscal
year;


 


(13)  transactions
with any joint venture or similar entity that would constitute an Affiliate
Transaction solely because the Company owns, directly or indirectly, any
Capital Stock of, or controls, such, joint venture or similar entity;


 


(14)  the
grant of stock options, restricted stock, stock appreciation rights, phantom
stock awards or similar rights to employees, directors and consultants approved
by the Board of Directors of the Company;


 


(15)  any
redemption of Capital Stock held by current or former employees, directors or
consultants at the time of their death, disability, termination of employment
or departure from the Board of Directors of the Company for not in excess of
fair market value;


 


(16)  transactions
involving the sale of inventory or services, in each case in the ordinary
course of business and otherwise in compliance with the terms of this Indenture
and fair to the Company and its Restricted Subsidiaries, in the reasonable
determination of the Board of Directors of the Company, from the Company or its
Restricted Subsidiaries to Affiliates of the Permitted Holders or Affiliates of
Mr. J.C. Mas;


 


(17)  Permitted
Payments to Parent; and


 


(18)  other
than transactions permitted by clause (16) above, transactions with
customers, clients, suppliers or purchasers or sellers of goods or services, in
each case in the ordinary course of business and otherwise in compliance with
the terms of this Indenture that are on terms no less favorable than those that
would have been obtained in a comparable transaction with an unrelated party or
that have been approved by a majority of the disinterested members of the Board
of Directors of the Company.


 


SECTION 4.12.                                         Limitation
on Liens.


 


The Company shall not, and
shall not cause or permit any of its Restricted Subsidiaries to, directly or
indirectly create, incur, assume or permit or suffer to exist any Liens of any
kind, other than Permitted Liens, against
or upon any property or assets or any proceeds therefrom of the Company or any
of its Restricted Subsidiaries whether
owned on the Issue Date or acquired after the Issue Date, in each case to
secure Indebtedness.


 


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SECTION 4.13.                                         Conduct of
Business.


 


(a) 
The Company shall not, and shall not permit any of its Restricted Subsidiaries
to, engage in any business other than a Permitted Business.


 


(b) 
The Company shall not cease to beneficially own (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, 100% of the
Voting Stock of the Finance Corp. (except to the extent Finance Corp. is merged
with and into the Company or a Guarantor in accordance with the terms of this
Indenture). Finance Corp. shall be designated as a Restricted Subsidiary of the
Company at all times and shall not own any material assets or other property,
other than Indebtedness or other obligations owing to Finance Corp. by the
Company and its Restricted Subsidiaries and Cash Equivalents, or engage in any
trade or conduct any business other than treasury, cash management, hedging and
cash pooling activities and activities incidental thereto. Finance Corp. shall
not incur any material liabilities or obligations other than their obligations
pursuant to the Notes, the Indenture, the Priority Lien Documents, the Parity
Lien Documents Security Documents and other Indebtedness permitted to be
Incurred by Finance Corp. under Section 4.09 and 4.12 and liabilities and
obligations pursuant to business activities permitted by this Section 4.13(b).


 


SECTION 4.14.                                         Corporate
Existence.


 


Subject to Article 5,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect (i) its corporate existence, and the
corporate, partnership or other existence of each of its Restricted
Subsidiaries, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Company or any such
Restricted Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Company and its Restricted Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Restricted Subsidiaries, if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.


 


SECTION 4.15.                                         Offer to
Repurchase upon Change of Control.


 


(a) 
If a Change of Control occurs, each Holder will have the right to require that
the Issuers purchase all or a portion of such Holder’s Notes pursuant to the
offer described below (the “Change of Control Offer”),
at a purchase price equal to 101% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of purchase (subject to the right of
Holders of record on the relevant record date to receive interest on the
relevant interest payment date).  Within
30 days following the date upon which the Change of Control occurred (or, at
the Company’s option, prior to the occurrence of such Change of Control), the
Company must send, by first class mail, a notice to each Holder, which notice
shall govern the terms of the Change of Control Offer.  Such notice shall state:


 


(i)             that
a Change of Control has occurred and that such Holder has the right to require
the Issuers to purchase such Holder’s Notes at a purchase price in cash equal
to 101% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest on the relevant interest payment
date);


 


(ii)          the
circumstances and relevant facts regarding such Change of Control (including
information with respect to pro forma historical income, cash flow and
capitalization, in each case after giving effect to such Change of Control);


 


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(iii) the purchase date (which shall be
no earlier than 30 days nor later than 60 days from the date such
notice is mailed) (the “Change of Control Payment
Date”); and


 


(iv) the instructions, as determined by
the Company, consistent with this Section, that a Holder must follow in order
to have its Notes purchased;


 


provided that any Change of Control Offer made prior
to any date of such Change of Control shall be made only in the reasonable
anticipation of such Change of Control; and provided further,
that the Issuers shall not be required to purchase any Notes tendered pursuant
to such Change of Control Offer if such Change of Control does not occur.


 


(b) 
On the Change of Control Payment Date, the Issuers shall, to the extent lawful,
(1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent
an amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to
the applicable Trustee the Notes so accepted together with an Officer’s
Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Issuers.  Holders
electing to have a Note purchased pursuant to a Change of Control Offer shall
be required to either (i) surrender the Note, with the form entitled “Option
of Holder to Elect Purchase” on the reverse of the Note duly completed, to the
Paying Agent at the address specified in the notice prior to the close of
business on the third Business Day prior to the Change of Control Payment Date,
or (ii) otherwise comply with the applicable procedures of DTC, including
the Automated Tender Offer Procedures and Deposit/Withdrawal at Custodian
system of DTC.  Holders will be entitled
to withdraw their election if the Trustee or the Company receives not later
than one Business Day prior to the purchase date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal amount
of the Note which was delivered for purchase by the Holder and a statement that
such Holder is withdrawing his election to have such Note purchased.  The Paying Agent shall promptly mail to each
Holder of Notes so tendered the Change of Control Payment for such Notes, and
the Trustee shall promptly authenticate and mail (or cause to be transferred by
book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided
that each such new Note will be in a minimum principal amount of $2,000 or in
any integral multiple of $1,000 thereafter. 
The Company shall publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Payment Date.


 


(c) 
The Issuers shall comply, to the extent applicable, with the requirements of Section 14(e) of
the Exchange Act and any other securities laws or regulations in connection
with the repurchase of Notes pursuant to this Section.  To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section, the Issuers
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section by virtue of
its compliance with such securities laws or regulations.


 


(d) 
Notwithstanding anything to the contrary in this Section 4.15, the Issuers
shall not be required to make a Change of Control Offer upon a Change of
Control, if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this Section 4.15
and purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.


 


(e) 
On the Change of Control Payment Date, all Notes purchased by the Issuers under
this Section shall be delivered by the Company to the Trustee for
cancellation, and the Issuers shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.  Notes purchased by a third party pursuant to
the preceding paragraph shall have the status of Notes issued and outstanding.


 


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SECTION 4.16.                                         Impairment of Security Interest


 


Subject to the Intercreditor Agreement and the rights of
the holders of Permitted Liens, the Company shall not, and shall not permit any
of its Restricted Subsidiaries to, take or knowingly or negligently omit to
take, any action which action or omission would or could reasonably be expected
to have the result of materially impairing the security interest with respect
to the Collateral for the benefit of the Trustee and the Holders of the
Notes.  The Company shall not amend,
modify or supplement, or permit or consent to any amendment, modification or
supplement of, the Note Security Documents (other than the Intercreditor
Agreement) in any way that, taken as a whole, would materially adversely affect
the rights of the Parity Junior Lien Collateral Agent or the Holders of the
Notes in the Collateral and not the holders of Priority Lien Obligations and other
Parity Lien Obligations in a like or similar manner (taking into account their
relative priorities), except as permitted by Articles 9, 10 or 11 of this
Indenture or the Intercreditor Agreement.


 


SECTION 4.17.                                         After-Acquired
Property


 


Upon
the acquisition by the Company or any Guarantor of any Priority Lien
After-Acquired Property (to the extent not already included in the definition
of Collateral), the Company or such Guarantor shall execute and deliver such
mortgages, deeds of trust, security instruments, financing statements and
certificates and opinions of counsel as shall be reasonably necessary to vest
in the Parity Junior Lien Collateral Agent a perfected security interest,
subject only to Permitted Liens, in such Priority Lien After-Acquired Property and
to have such Priority Lien After-Acquired Property added to the Collateral, and thereupon all provisions of this Indenture
relating to the Collateral shall be deemed to relate to such Priority Lien
After-Acquired Property to the same extent and with the same force and effect.


 


SECTION 4.18.                                         Future
Guarantees by Subsidiaries.


 


Each Domestic Restricted
Subsidiary that guarantees any Indebtedness of the Company or any of its
Subsidiaries or incurs any Indebtedness shall execute and deliver a
supplemental indenture to this Indenture, providing for a Guarantee of payment
of the Notes by such Domestic Restricted Subsidiary on the terms set forth in
this Indenture.


 


Notwithstanding the
foregoing, the Guarantee of a Guarantor shall be automatically and
unconditionally released, without any further action required on the part of
the Trustee or any Holder of Notes in accordance with Section 11.05.


 


SECTION 4.19.                                         Limitation
on Sale and Leaseback Transactions.


 


The Company shall not, and
shall not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transaction with respect to any property unless (i) the Company
or such Restricted Subsidiary would be entitled to (A) incur additional
Indebtedness in an amount equal to the Attributable Debt with respect to such
Sale and Leaseback Transaction pursuant to Section 4.09 and (B) create
a Lien on such property securing such Attributable Debt under the definition of
“Permitted Liens”; (ii) the net proceeds received by the Company or any
Restricted Subsidiary in connection with such Sale and Leaseback Transaction
are at least equal to the fair market value of such property; and (iii) the
Company applies the proceeds of such transaction in compliance with Section 4.10.


 


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ARTICLE 5


 


SUCCESSORS


 


SECTION 5.01.                                         Merger,
Consolidation and Sale of Assets.


 


(a)  The Company shall not, in a single
transaction or series of related transactions, consolidate or merge with or
into any Person, or sell, assign, transfer, lease, convey or otherwise dispose
of (or cause or permit any Restricted Subsidiary of the Company to sell,
assign, transfer, lease, convey or otherwise dispose of) all or substantially
all of the Company’s assets (determined on a consolidated basis for the Company
and the Company’s Restricted Subsidiaries) whether as an entirety or
substantially as an entirety to any Person unless:


 


(1)  either:


 


(A)  the
Company shall be the surviving or continuing Person; or


 


(B)  the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or the Person that acquires by sale, assignment,
transfer, lease, conveyance or other disposition of the properties and assets
of the Company and of the Company’s Restricted Subsidiaries substantially as an
entirety (the “Surviving Entity”):


 


(x)  shall be a corporation, partnership or
limited liability company organized and validly existing under the laws of the
United States of America, any state thereof or the District of Columbia; and


 


(y)  shall expressly assume, by supplemental
indenture (in form and substance satisfactory to the Trustee) executed and
delivered to the Trustee, the due and punctual payment of the principal of, and
premium, if any, and interest on all of the Notes and the performance of every
covenant of the Notes, this Indenture and the Registration Rights Agreement on
the part of the Company to be performed or observed;


 


(2)  except in the case of a
merger of the Company with or into a Wholly Owned Restricted Subsidiary of the
Company and except in the case of a merger entered into solely for the purpose
of reincorporating the Company in another jurisdiction, immediately after giving
pro forma effect to such transaction and the assumption contemplated by Section
5.01(a)(1)(B)(y) (including giving pro forma effect to any Indebtedness
and Acquired Indebtedness incurred or anticipated to be incurred in connection
with or in respect of such transaction), the Company or such Surviving Entity,
as the case may be, shall either (A) be able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.09 or (B) if such transaction occurs prior June 15, 2008, (x) have
a Consolidated Fixed Charge Coverage Ratio of at least 1.75 to 1.0 and
(y) have a Consolidated Fixed Charge Coverage Ratio of not less than the
Consolidated Fixed Charge Coverage Ratio of the Company immediately prior to
such merger, sale, assignment, transfer, lease, conveyance or other
disposition;


 


(3)  except in the case of a
merger of the Company with or into a Wholly Owned Restricted Subsidiary of the
Company and except in the case of a merger entered into solely for the purpose
of reincorporating the Company in another jurisdiction, immediately after giving
effect to such transaction and the assumption contemplated by Section 5.01(a)(1)(B)(y)
(including


 


66





















 


giving
effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to
be incurred and any Lien granted or to be released in connection with or in
respect of the transaction), no Default shall have occurred or be continuing;
and


 


(4)  the Company or the Surviving
Entity shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture, comply with the applicable provisions of this Indenture
and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.


 


(b)  Finance Corp. shall not, in a single
transaction or series of related transactions, consolidate or merge with or
into any Person, or sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of Finance Corp.’s assets whether as an entirety or
substantially as an entirety to any Person unless:


 


(1)  either:


 


(A)  Finance
Corp. shall be the surviving or continuing corporation; or


 


(B)  the
Person (if other than Finance Corp.) formed by such consolidation or into which
Finance Corp. is merged or the Person that acquires by sale, assignment,
transfer, lease, conveyance or other disposition of the properties and assets
of Finance Corp. substantially as an entirety (the “Finance
Corp. Surviving Entity”):


 


(x)  shall be a corporation organized and validly
existing under the laws of the United States of America, any state thereof or
the District of Columbia; and


 


(y)  shall expressly assume, by supplemental
indenture (in form and substance satisfactory to the Trustee) executed and
delivered to the Trustee, the due and punctual payment of the principal of, and
premium, if any, and interest on all of the Notes and the performance of every
covenant of the Notes, this Indenture and the Registration Rights Agreement on
the part of Finance Corp. to be performed or observed;


 


(2)  except in the case of a
merger of Finance Corp. with or into a Wholly Owned Restricted Subsidiary of
the Company and except in the case of a merger entered into solely for the
purpose of reincorporating Finance Corp. in another jurisdiction, immediately
after giving pro forma effect to such transaction and the assumption
contemplated by Section 5.01(b)(1)(B)(y) (including giving pro forma
effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to
be incurred in connection with or in respect of such transaction), the Company
shall either (A) be able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.09 or
(B) if such transaction occurs prior June 15, 2008, (x) have a
Consolidated Fixed Charge Coverage Ratio of at least 1.75 to 1.0 and
(y) have a Consolidated Fixed Charge Coverage Ratio of not less than the
Consolidated Fixed Charge Coverage Ratio of the Company immediately prior to
such merger, sale, assignment, transfer, lease, conveyance or other
disposition;


 


(3)  except in the case of a
merger of Finance Corp. with or into a Wholly Owned Restricted Subsidiary of
the Company and except in the case of a merger entered into solely for


 


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the
purpose of reincorporating Finance Corp. in another jurisdiction, immediately
after giving effect to such transaction and the assumption contemplated by
Section 5.01(b)(1)(B)(y) (including giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred and any Lien
granted or to be released in connection with or in respect of the transaction),
no Default shall have occurred or be continuing; and


 


(4)  Finance Corp. or the Finance
Corp. Surviving Entity shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.


 


(c)  For purposes of this Section 5.01, the
transfer (by lease, assignment, sale or otherwise, in a single transaction or
series of transactions) of all or substantially all of the properties or assets
of one or more Restricted Subsidiaries of the Company the Capital Stock of
which constitutes all or substantially all of the properties and assets of the
Company shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company. 
However, transfers of assets between or among the Company and its
Restricted Subsidiaries will not be subject to this Section 5.01.


 


SECTION 5.02.                                         Successor
Corporation Substituted.


 


Upon any consolidation,
combination or merger, or any transfer of all or substantially all of the
assets of the Company in accordance with Section 5.01(a) or of Finance Corp. in
accordance with Section 5.01(b), in which the Company or Finance Corp., as
applicable, is not the continuing entity, the successor Person formed by such
consolidation or into which the Company or Finance Corp., as applicable, is
merged or to which such sale, assignment, conveyance, lease or transfer is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company or Finance Corp., as applicable, under this Indenture,
the Note Security Documents and the Notes with the same effect as if such
surviving entity had been named as such and that, in the event of a conveyance,
lease or transfer, the conveyor, lessor or transferor will be released from the
provisions of this Indenture, the Notes, the Note Security Documents and the
Registration Rights Agreement; provided that
neither the Company nor Finance Corp. shall be released from its obligation to
pay the principal of, premium, if any, interest or Additional Interest on the
Notes in the case of a lease of all or substantially all of its property and
assets.


 


ARTICLE 6


 


DEFAULTS AND REMEDIES


 


SECTION 6.01.                                         Events
of Default.


 


“Events of
Default” are:


 


(a)  the failure to pay interest
on any Notes when the same becomes due and payable and the default continues
for a period of 30 days;


 


(b)  the failure to pay the
principal of any Notes when such principal becomes due and payable, at
maturity, upon redemption or otherwise (including the failure to make a payment
to


 


68





















 


purchase
Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer on
the date specified for such payment in the applicable offer to purchase);


 


(c)  the failure of the Issuers
to comply with their obligations under Section 5.01;


 


(d)  a default in the observance
or performance of any other covenant or agreement contained herein if the
default continues for a period of 60 days after the Company receives written
notice specifying the default (and demanding that such default be remedied)
from the Trustee or the Holders of at least 25% of the outstanding principal
amount of the Notes;


 


(e)  the failure to pay at final
stated maturity (giving effect to any applicable grace periods and any
extensions thereof) the principal amount of any Indebtedness of the Company or
any Restricted Subsidiary of the Company (other than a Securitization Entity)
or the acceleration of the final stated maturity of any such Indebtedness, if
in either case, the aggregate principal amount of such Indebtedness, together
with the principal amount of any other such Indebtedness in default for failure
to pay principal at final maturity or which has been accelerated, aggregates
$25.0 million or more at any time;


 


(f)  one or more judgments,
orders or decrees for the payment of money in an aggregate amount in excess of
$25.0 million shall have been rendered against any Issuer, any Guarantor or any
of its Significant Subsidiaries and such judgments, orders or decrees remain
undischarged, unpaid or unstayed for a period of 60 days after such judgment,
order or decree or judgments, orders or decrees become final and non-appealable;


 


(g)  the Company, Finance Corp. or
any Significant Subsidiary of the Company pursuant to or within the meaning of
Bankruptcy Law:


 


(i)  commences a voluntary case;


 


(ii)  consents to the entry of an
order for relief against it in an involuntary case;


 


(iii)  consents to the
appointment of a custodian of it or for all or substantially all of its
property; or


 


(iv)  makes a general assignment
for the benefit of its creditors;


 


(h)  a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(i)  is for relief against the
Company, Finance Corp. or any Significant Subsidiary of the Company;


 


(ii)  appoints a custodian of the
Company, Finance Corp. or any Significant Subsidiary of the Company or for all
or substantially all of the property of the Company, Finance Corp. or any Significant
Subsidiary of the Company; or


 


(iii)  orders the liquidation of
the Company, Finance Corp. or any Significant Subsidiary of the Company;


 


and the order or decree
remains unstayed and in effect for 60 consecutive days;


 


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(i)  any Guarantee of a
Significant Subsidiary ceases to be in full force and effect or any Guarantee
of a Significant Subsidiary is declared to be null and void and unenforceable
or any Guarantee of a Significant Subsidiary is found to be invalid or any
Guarantor that is a Significant Subsidiary denies its liability under its
Guarantee (other than by reason of release of a Guarantor in accordance with
the terms of this Indenture or the Intercreditor Agreement); or


 


(j)  the occurrence of any of the
following:


 


(i)  except as otherwise
permitted by this Indenture, any Note Security Document ceases for any reason
to be fully enforceable; provided,
that it will not be an Event of Default under this clause (j)(i) if the sole
result of the failure of one or more Note Security Documents to be fully
enforceable is that any Parity Junior Lien purported to be granted under such
Note Security Documents on Collateral, individually or in the aggregate, having
a fair market value of not more than $25.0 million ceases to be an enforceable
and perfected second-priority Lien with respect to the Notes, subject only to
Permitted Liens;


 


(ii)  the Company, Finance Corp. or
any other Grantor, or any Person acting on behalf of any of them, denies or
disaffirms, in writing, any obligation of the Company, Finance Corp. or any
other Grantor set forth in or arising under any Note Security Document; or


 


(iii)  a default in the
observance or performance of any covenant or agreement contained in the Note
Security Documents if the default continues for a period of 60 days after the
Company receives written notice specifying the default (and demanding that such
default be remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Notes.


 


SECTION 6.02.                                         Acceleration.


 


If an Event of Default
(other than an Event of Default specified in clause (g) or (h) of Section 6.01
with respect to any Issuer or Neff Rental) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare the principal of and accrued interest on all the
Notes to be due and payable immediately by notice in writing to the Company and
the Trustee specifying the applicable Event of Default and that it is a “notice
of acceleration” (an “Acceleration Notice”),
and the same shall become immediately due and payable.  If an Event of Default specified in Section
6.01(g) or (h) with respect to any Issuer or Neff Rental occurs and is
continuing, then all unpaid principal of, and premium, if any, and accrued and
unpaid interest on all the outstanding Notes shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.


 


At any time after such
declaration of acceleration, but before a judgment or decree for the payment of
the money due has been obtained by the Trustee, the Holders of at least a
majority in principal amount of the outstanding Notes by written notice to the Issuers
and to the Trustee, may waive all past Defaults and rescind and annul a
declaration of acceleration and its consequences if (a) the Issuers have paid
or deposited with the Trustee a sum sufficient to pay (i) all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, (ii) all
overdue interest on all Notes, (iii) the principal of and premium, if any, on
any Notes that have become due otherwise than by such declaration or occurrence
of acceleration and interest thereon at the rate prescribed therefor by such
Notes, and (iv) to the extent that payment of such interest is lawful, interest
upon overdue interest, if any, at the rate prescribed therefor by such Notes,
(b) all existing


 


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Events of Default, other than the non-payment
of the principal of, premium, if any, and accrued interest on the Notes that
have become due solely by such declaration of acceleration, have been cured or
waived, (c) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction and (d) in
the event of the cure or waiver of an Event of Default of the type described in
Section 6.01(g) or (h), the Trustee shall have received an Officer’s
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived.


 


SECTION 6.03.                                         Other
Remedies.


 


If an Event of Default
occurs and is continuing, the Trustee and the Parity Junior Lien Collateral Agent
may and at the direction of the Holders of at least a majority in principal
amount of the outstanding Notes shall, subject to the Intercreditor Agreement,
pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Additional Interest, if any, on the Notes or to enforce
the performance of any provision of the Notes or this Indenture.


 


The Trustee and the Parity
Junior Lien Collateral Agent may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the
proceeding.  A delay or omission by the
Trustee, the Parity Junior Lien Collateral Agent or any Holder of a Note in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default.  All remedies are
cumulative to the extent permitted by law. 
Subject to the Intercreditor Agreement, every right and remedy given by
this Article 6 or by law to the Trustee, to the Parity Junior Lien Collateral
Agent or to the Holders may be exercised from time to time, and as often as may
be deemed expedient by the Trustee, by the Parity Junior Lien Collateral Agent or
by the Holders, as the case may be.  The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


SECTION 6.04.                                         Waiver
of Past Defaults.


 


Subject to Sections 6.02, 6.07
and 9.02, Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may, on behalf of the
Holders of all of the Notes, waive an existing Default and its consequences
hereunder, except a continuing Default in the payment of the principal of,
premium and Additional Interest, if any, or interest on, the Notes (including
in connection with an offer to purchase) or in respect of a covenant or
provision of this Indenture which cannot be modified or amended without the
consent of the Holder of each outstanding Note affected.  Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.


 


SECTION 6.05.                                         Control
by Majority.


 


Holders of a majority in
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.


 


In the event the Trustee
takes any action or follows any direction pursuant to this Indenture, the
Trustee shall be entitled to indemnification from the Issuers satisfactory to
it in its sole discretion against any fees, loss, liability, cost or expense
caused by taking such action or following such direction.


 


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SECTION 6.06.                                         Limitation
on Suits.


 


A Holder of a Note may
pursue a remedy in accordance with the Intercreditor Agreement with respect to
this Indenture or the Notes only if:


 


(a)  the Holder of a Note gives to the Trustee
written notice of a continuing Event of Default;


 


(b)  the Holders of at least 25% in principal
amount of the then outstanding Notes make a written request to the Trustee to
pursue the remedy;


 


(c)  such Holder of a Note or Holders of Notes
offer and, if requested, provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;


 


(d)  the Trustee does not comply with the request
within 60 days after receipt of the request and the offer and, if requested,
the provision of indemnity; and


 


(e)  during such 60-day period the Holders of a
majority in principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.


 


A Holder of a Note may not
use this Indenture to prejudice the rights of another Holder of a Note or to
obtain a preference or priority over another Holder of a Note.


 


SECTION 6.07.                                         Rights
of Holders of Notes to Receive Payment.


 


Notwithstanding any other
provision of this Indenture, the right of any Holder of a Note to receive
payment of principal, premium and Additional Interest, if any, and interest on
the Note, on or after the respective due dates expressed in the Note (including
in connection with an offer to purchase), or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.


 


SECTION 6.08.                                         Collection
Suit by Trustee.


 


If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express
trust against the Issuers for the whole amount of principal amount of, premium
and Additional Interest, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any amounts due the Trustee under
Section 7.07.


 


SECTION 6.09.                                         Trustee
May File Proofs of Claim.


 


The Trustee is authorized to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Issuers (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the


 


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Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07.  To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.  Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.


 


SECTION 6.10.                                         Priorities.


 


If the Trustee collects any
money pursuant to this Article, it shall pay out the money in the following
order:


 


First:  to
the Trustee, its agents and attorneys for amounts due under Section 7.07, including
payment of all compensation, expense and liabilities incurred, and all advances
made, by the Trustee and the costs and expenses of collection;


 


Second:  to Holders of Notes for amounts due and unpaid on the Notes for
principal amount, premium and Additional Interest, if any, and interest
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal amount, premium and Additional
Interest, if any and interest, respectively; and


 


Third:  to
the Issuers or to such party as a court of competent jurisdiction shall direct.


 


The Trustee may fix a record
date and payment date for any payment to Holders of Notes pursuant to this
Section 6.10; provided, however, that the failure to give any such notice shall not
affect the establishment of such record date or payment date or any payments to
Holders pursuant to this Section 6.10.


 


SECTION 6.11.                                         Undertaking
for Costs.


 


In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant.  This Section does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by
Holders of more than 10% in principal amount of the then outstanding Notes.


 


SECTION 6.12.                                         Restoration
of Rights and Remedies.


 


If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every case, subject to any determination in such proceeding, the Issuers,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.


 


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ARTICLE 7


 


TRUSTEE


 


SECTION 7.01.                                         General.


 


The duties and
responsibilities of the Trustee shall be as provided by the TIA and as set
forth herein.  Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.  Whether or
not herein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article Seven.


 


SECTION 7.02.                                         Certain
Rights of Trustee.


 


Subject to TIA Sections
315(a) through (d):


 


(i)  the Trustee may rely, and shall be protected
in acting or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper person;


 


(ii)  before the Trustee acts or refrains from
acting, it may require an Officer’s Certificate, an Opinion of Counsel or
both.  The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion;


 


(iii)  the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;


 


(iv)  the Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or negligence of any
attorney or agent appointed with due care by it hereunder;


 


(v)  the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction;


 


(vi)  the Trustee shall not be liable for any
action it takes or omits to take in good faith that it believes to be
authorized or within its rights or powers, provided
that the Trustee’s conduct does not constitute negligence or bad faith;


 


(vii)  whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer’s Certificate;


 


(viii)  the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,


 


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direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuers personally
or by agent or attorney; and


 


(ix)  the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder of a Note or
that would involve the Trustee in personal liability.


 


SECTION 7.03.                                         Individual
Rights of Trustee.


 


The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Issuers or their Affiliates with the same rights it
would have if it were not the Trustee. 
Any Agent may do the same with like rights.  However, the Trustee is subject to TIA
Sections 310(b) and 311.


 


SECTION 7.04.                                         Trustee’s
Disclaimer.


 


The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this
Indenture, the Notes or the Note Security Documents, it shall not be
accountable for the Issuers’ use of the proceeds from the Notes, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any statement
or recital herein or any statement in the Notes or any other document in
connection with the sale of the Notes or pursuant to this Indenture or the Note
Security Documents other than its certificate of authentication.


 


SECTION 7.05.                                         Notice
of Defaults.


 


(a)  The Trustee shall not be deemed to have
notice of any Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.


 


(b)  If a Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice
of the Default within 30 days after it occurs. 
Except in the case of a Default in payment of principal of, premium, if
any, or interest on any Note, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.


 


SECTION 7.06.                                         Reports
by Trustee to Holders of the Notes.


 


Within 60 days after each
May 15 beginning with May 15, 2006, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted).  The Trustee also shall comply with TIA
§ 313(b).  The Trustee shall also
transmit by mail all reports as required by TIA § 313(c).


 


A copy of each report at the
time of its mailing to the Holders of Notes shall be mailed to the Issuers and
filed with the SEC and each stock exchange on which the Notes are listed in
accordance


 


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with TIA § 313(d).  The Issuers shall promptly notify the Trustee
when the Notes are listed on any stock exchange or any delisting thereof.


 


SECTION 7.07.                                         Compensation
and Indemnity.


 


The Issuers and the
Guarantors shall pay to the Trustee from time to time such compensation for its
acceptance of this Indenture and services hereunder as the parties shall agree
from time to time.  The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust.  The Issuers and the
Guarantors shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services.  Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee’s agents and counsel.


 


The Issuers and the
Guarantors, jointly and severally, shall indemnify the Trustee, its directors,
officers and employees, and each predecessor Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of this trust and its duties under this
Indenture, including the costs and expenses (including reasonable attorney’s
fees) of enforcing this Indenture against the Issuers and the Guarantors (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Issuers and the Guarantors or any Holder or any other person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. 
The Trustee shall notify the Issuers and the Guarantors promptly of any
claim for which it may seek indemnity. 
Failure by the Trustee to so notify the Issuers and the Guarantors shall
not relieve the Issuers or such Guarantors of their respective obligations
hereunder.  The Issuers shall defend the
claim and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel and the
Issuers shall pay the reasonable fees and expenses of such counsel.  The Issuers and the Guarantors need not pay
for any settlement made without their consent, which consent shall not be
unreasonably withheld.


 


The obligations of the Issuers
and the Guarantors under this Section 7.07 shall survive the resignation and
removal of the Trustee and the satisfaction and discharge of this Indenture.


 


To secure the Issuers’ and
the Guarantors’ payment obligations in this Section, the Trustee shall have a
Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular
Notes.  Such Lien shall survive the
satisfaction and discharge of this Indenture.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in
Section 6.01(g) or (h) occurs, the expenses and the compensation for the
services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy Law.


 


The Trustee shall comply
with the provisions of TIA § 313(b)(2) to the extent applicable.


 


SECTION 7.08.                                         Replacement
of Trustee.


 


A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee’s acceptance of appointment as provided in this
Section 7.08.


 


The Trustee may resign in
writing at any time and be discharged from the trust hereby created by so
notifying the Issuers.  The Holders of
Notes of a majority in principal amount of the then


 


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outstanding Notes may remove the Trustee by
so notifying the Trustee and the Issuers in writing and may appoint a successor
Trustee with the consent of the Issuers. 
The Issuers may remove the Trustee if:


 


(a)  the Trustee fails to comply with Section
7.10;


 


(b)  the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the Trustee under
any Bankruptcy Law;


 


(c)  a custodian or public officer takes charge of
the Trustee or its property; or


 


(d)  the Trustee becomes incapable of acting.


 


If the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the Issuers
shall promptly appoint a successor Trustee. 
Within one year after the successor Trustee takes office, the Holders of
a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.


 


If a successor Trustee does
not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Issuers or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Issuers.  Immediately after the
delivery of such written acceptance, subject to the Lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, (ii) the resignation or removal of the
retiring Trustee shall become effective and (iii) the successor Trustee shall
have all the rights, powers and duties of the Trustee under this
Indenture.  A successor Trustee shall
mail notice of its succession to each Holder. 
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.


 


If the Trustee is no longer
eligible under Section 7.10 or shall fail to comply with TIA Section 310(b),
any Holder who satisfies the requirements of TIA Section 310(b) may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.  If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.08, the Trustee shall resign immediately in the
manner and with the effect provided in this Section.


 


The Issuers shall give
notice of any resignation and any removal of the Trustee and each appointment
of a successor Trustee to all Holders. 
Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.


 


Notwithstanding replacement
of the Trustee pursuant to this Section 7.08, the Issuers’ obligations under
Section 7.07 shall continue for the benefit of the retiring Trustee.


 


SECTION 7.09.                                         Successor
Trustee by Merger, etc.


 


If the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation or national banking association, the
successor corporation or national banking association without any further act
shall be the successor Trustee with the same effect as if the successor Trustee
had been named as the Trustee herein, provided such corporation shall be
otherwise qualified and eligible under this Article.


 


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In case at the time such
successor or successors by merger, conversion or consolidation to the Trustee
shall succeed to the trusts created by this Indenture any of the Notes shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor trustee, and
deliver such Notes so authenticated; and in case at that time any of the Notes
shall not have been authenticated, any successor to the Trustee may authenticate
such Notes either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall
have the same force and effect as provided anywhere in the Notes or in this
Indenture that the certificate of the Trustee shall have.


 


SECTION 7.10.                                         Eligibility;
Disqualification.


 


There shall at all times be
a Trustee hereunder that is a corporation organized and doing business under
the laws of the United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power, that is subject
to supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $50.0 million as set forth in its most
recent published annual report of condition.


 


This Indenture shall always
have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and
(5).  The Trustee is subject to TIA
§ 310(b).  If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section 7.10, the Trustee shall resign immediately in the manner and with
the effect specified in this Article 7.


 


SECTION 7.11.                                         Preferential
Collection of Claims Against Issuers.


 


The Trustee is subject to
TIA § 311(a), excluding any creditor relationship listed in TIA
§ 311(b).  A Trustee who has
resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.


 


SECTION 7.12.                                         Note
Security Documents.


 


The Trustee is authorized
and directed to (i) enter into the Note Security Documents (to the extent
a party thereto), (ii) bind the Holders on the terms as set forth in the
Note Security Documents and (iii) perform and observe its obligations
under the Note Security Documents.


 


ARTICLE 8


 


LEGAL
DEFEASANCE AND COVENANT DEFEASANCE


 


SECTION 8.01.                                         Option
to Effect Legal Defeasance or Covenant Defeasance.


 


The Issuers may, at the
option of their respective Board of Directors evidenced by a resolution set
forth in an Officer’s Certificate, at any time, elect to have either Section
8.02 or 8.03 applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.


 


SECTION 8.02.                                         Legal
Defeasance and Discharge.


 


Upon the Issuers’ exercise
under Section 8.01 of the option applicable to this Section 8.02, the Issuers
shall, subject to the satisfaction of the conditions set forth in Section 8.04,
be deemed to have been discharged from its obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance


 


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means that the Issuers shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be “outstanding” only for the
purposes of Section 8.05 and the other Sections of this Indenture referred
to in clauses (a) through (d) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Issuers, shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder:


 


(a)  the rights of Holders of
outstanding Notes to receive solely from the trust fund described in
Section 8.04(a), and as more fully set forth in such Section, payments in
respect of the principal amount of, premium, if any, and interest on such Notes
when such payments are due,


 


(b)  the Issuers’ obligations
with respect to such Notes under Article 2 and Section 4.02,


 


(c)  the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Issuers’ obligations in
connection therewith, and


 


(d)  this Article 8.


 


Subject to compliance with
this Article 8, the Issuers may exercise their option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03.


 


SECTION 8.03.                                         Covenant
Defeasance.


 


Upon the Issuers’ exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuers
shall, subject to the satisfaction of the conditions set forth in Section 8.04,
be released from their obligations under the covenants contained in
Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17,
4.18 and 4.19 and the limitations contained in Sections 5.01(a)(2) and
5.01(b)(2) with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). 
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Issuers may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default under Section 6.01, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.  In addition, upon
the Issuers’ exercise under Section 8.01 of the option applicable to this
Section 8.03 and subject to the satisfaction of the conditions set forth in
Section 8.04, the failure to comply with the terms of Sections 6.01(e) and
6.01(f) shall not constitute Events of Default.


 


If the Issuers exercise their
Legal Defeasance option or their Covenant Defeasance option, each Guarantor, if
any, shall be released from all Obligations with respect to its Guarantee and
the Collateral shall be released from the Liens securing the Notes and the
Guarantees.


 


SECTION 8.04.                                         Conditions
to Legal or Covenant Defeasance.


 


The following shall be the
conditions to the application of either Section 8.02 or 8.03 to the
outstanding Notes:


 


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(a)  the Issuers must irrevocably
deposit with the Trustee, in trust, for the benefit of the Holders, cash in
United States dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient without consideration of any reinvestment,
in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal amount of, premium and Additional Interest,
if any, and interest on the outstanding Notes on the stated date for payment thereof
or on the applicable redemption date, as the case may be, in each case in
accordance with the terms of this Indenture and the Notes;


 


(b)  in the case of an election
under Section 8.02, the Issuers shall have delivered to the Trustee an Opinion
of Counsel (subject to customary qualifications and exceptions) in the United
States reasonably acceptable to the Trustee confirming that (A) the Issuers
have received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the Issue Date, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;


 


(c)  in the case of an election
under Section 8.03, the Issuers shall have delivered to the Trustee an Opinion
of Counsel (subject to customary qualifications and exceptions) in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;


 


(d)  no Default shall have
occurred and be continuing on the date of such deposit (other than a Default
resulting from the borrowing of funds to be applied to such deposit and the
grant of any Lien securing such borrowing) or insofar as Events of Default
pursuant to Section 6.01(g) or (h) are concerned, at any time in the period
ending on the 91st day after the date of deposit;


 


(e)  such Legal Defeasance or
Covenant Defeasance shall not result in a breach or violation of, or constitute
a default under this Indenture (other than a Default resulting from the
borrowing of funds to be applied to such deposit and the grant of any Lien
securing such borrowing) or any other material agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound;


 


(f)  the Issuers shall have
delivered to the Trustee an Officer’s Certificate stating that the deposit was
not made by the Issuers with the intent of preferring the Holders over any
other creditors of the Issuers or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Issuers;


 


(g)  the Issuers shall have
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for or relating to the
Legal Defeasance or the Covenant Defeasance have been complied with; and


 


(h)  the Issuers shall have paid
or duly provided for payment of all amounts then due to the Trustee pursuant to
Section 7.07.


 


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Notwithstanding the
foregoing, the Opinion of Counsel required by clause (b) above with respect to
a Legal Defeasance need not be delivered if all Notes not therefor delivered to
the Trustee for cancellation (A) have become due and payable, or
(B) will become due and payable on the maturity date within one year under
arrangements satisfactory to the Trustee for giving of notice of redemption by
the Trustee in the name, and at the expense, of the Issuers.


 


SECTION 8.05.                                         Deposited
Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions.


 


Subject to
Section 8.06, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee pursuant to Section 8.04
in respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal amount,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.


 


The Issuers shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash or non-callable Government Securities deposited pursuant
to Section 8.04 or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of the outstanding Notes.


 


Anything in this
Article 8 to the contrary notwithstanding, the Trustee shall deliver or
pay to the Issuers from time to time upon the request of the Issuers any money
or non-callable Government Securities held by it as provided in
Section 8.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a)), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.


 


SECTION 8.06.                                         Satisfaction
and Discharge.


 


This Indenture will be
discharged and will cease to be of further effect (except as to surviving
rights of registration of transfer or exchange of the Notes, as expressly
provided for in this Indenture) as to all outstanding Notes when


 


(1)  either:


 


(a)  all the
Notes theretofore authenticated and delivered (except lost, stolen or destroyed
Notes which have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Issuers
and thereafter repaid to the Issuers or discharged from such trust) have been
delivered to the Trustee for cancellation; or


 


(b)  all Notes
not theretofore delivered to the Trustee for cancellation have become due and
payable, pursuant to an optional redemption notice or otherwise, and the Issuers
have irrevocably deposited or caused to be deposited with the Trustee funds in
an amount sufficient to pay and discharge the entire Indebtedness on the Notes
not theretofore delivered to the Trustee for cancellation, for principal of, premium,
if any, and interest on the Notes to the date of deposit together with irrevocable
instructions from the Issuers directing the Trustee to apply such funds to the
payment thereof at maturity or redemption, as the case may be; and


 


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(2)  the Issuers have paid all
other sums payable under this Indenture by the Issuers.


 


The Trustee will acknowledge
the satisfaction and discharge of this Indenture if the Issuers have delivered
to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that
all conditions precedent under this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.


 


SECTION 8.07.                                         Repayment
to the Issuers.


 


Subject to any applicable
laws relating to abandoned property, any money deposited with the Trustee or
any Paying Agent, or then held by the Issuers, in trust for the payment of the
principal, premium, if any, or interest on any Note and remaining unclaimed for
two years after such principal and premium, if any, or interest has become due
and payable shall be paid to the Issuers on their request or (if then held by
the Issuers) shall be discharged from such trust; and the Holder of such Note
shall thereafter, as a general creditor, look only to the Issuers for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Issuers as trustee thereof, shall
thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Issuers cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuers.


 


SECTION 8.08.                                         Reinstatement.


 


If the Trustee or Paying
Agent is unable to apply any United States dollars or non-callable Government
Securities in accordance with Section 8.02 or 8.03, as the case may be, by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the Issuers’
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 until
such time as the Trustee or Paying Agent is permitted to apply all such money
in accordance with Section 8.02 or 8.03, as the case may be; provided, however, that, if the Issuers make any payment of
principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Issuers shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.


 


SECTION 8.09.                                         Survival.


 


The Trustee’s rights under
this Article 8 shall survive termination of this Indenture.


 


ARTICLE 9


 


AMENDMENT,
SUPPLEMENT AND WAIVER


 


SECTION 9.01.                                         Without
Consent of Holders of Notes.


 


Notwithstanding Section
9.02, the Issuers, the Guarantors and the Trustee may amend or supplement this
Indenture, the Guarantees or the Notes without the consent of any Holder of a
Note:


 


(a)  to cure any ambiguity, defect or
inconsistency;


 


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(b)  to provide for uncertificated Notes in addition
to or in place of certificated Notes (provided that
the uncertificated Notes are issued in registered form for purposes of Section
163(f) of the Code, or in a manner such that the uncertificated Notes are
described in Section 163(f)(2)(B) of the Code);


 


(c)  to provide for the assumption of an Issuer’s
or a Guarantor’s obligations to the Holders of the Notes by a successor to an
Issuer or a Guarantor pursuant to Article 5 or Article 11;


 


(d)  to add to the covenants of the Issuers or any
Guarantor for the benefit of the Holders of the Notes or to surrender any right
or power conferred upon any Issuer or any Guarantor;


 


(e)  to make any change that does not adversely
affect the rights of any Holder of the Notes;


 


(f)  to comply with any requirement of the SEC in
connection with the qualification of this Indenture under the TIA;


 


(g)  to provide for the issuance of Notes issued
after the Issue Date in accordance with the limitations set forth in this
Indenture;


 


(h)  to reflect the release of any Guarantor from
its supplemental indenture or Guarantee, in each case as permitted in this
Indenture or to allow any Guarantor to execute a supplemental indenture or a
Guarantee with respect to the Notes;


 


(i)  to evidence and provide for the acceptance of
appointment under this Indenture of a successor Trustee or successor Parity
Junior Lien Collateral Agent;


 


(j)  to provide additional Collateral to secure
the Notes;


 


(k)  to make any amendment to the provisions of
this Indenture relating to the transfer and legending of Notes; provided, however, that
(i) compliance with this Indenture as so amended would not result in Notes
being transferred in violation of the Securities Act or any other applicable
securities law and (ii) such amendment does not materially and adversely
affect the rights of Holders to transfer Notes;


 


(l)  to make, complete or confirm (i) any grant of
Collateral permitted or required by this Indenture, the Intercreditor Agreement
or any other Note Security Document and (ii) any release of Collateral that
becomes effective as set forth in this Indenture, the Intercreditor Agreement
or any other Note Security Documents; or


 


(m)  to conform the text of this Indenture or the
Notes to any provision of the Offering Circular under the caption “Description
of the Notes” to the extent that such provision was intended to be a verbatim
recitation of a provision of this Indenture or the Notes.


 


Upon the request of the
Company accompanied by a resolution of the Board of Directors of the Company
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 7.02 and
9.06, the Trustee shall join with the Issuers and the Guarantors in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.


 


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Notwithstanding the
foregoing, in accordance with the Intercreditor Agreement, subject to
Section 2.16 of the Intercreditor Agreement, any amendment, waiver or
consent to any of the Priority Lien Security Documents will also apply
automatically to the analogous Note Security Documents to the same extent as
such amendment, waiver or consent applies to the Priority Lien Security Documents.


 


SECTION 9.02.                                         With
Consent of Holders of Notes.


 


Except as provided in this
Section 9.02, this Indenture (including Sections 3.09, 4.10 and 4.15), the
Guarantees and the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes then
outstanding voting as a single class (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes), and,
subject to Sections 6.04 and 6.07, any existing Default (other than a Default
in the payment of the principal of, premium, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Guarantees
or the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes voting as a single class
(including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes). 
Section 2.08 shall determine which Notes are considered to be “outstanding”
for purposes of this Section 9.02.


 


Upon the request of the
Company accompanied by a resolution of its Board of Directors authorizing the
execution of any such amended or supplemental Indenture, and upon the filing
with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents
described in Sections 7.02 and 9.06, the Trustee shall join with the Issuers in
the execution of such amended or supplemental Indenture unless such amended or
supplemental Indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such amended or supplemental
Indenture.


 


It shall not be necessary
for the consent of the Holders of Notes under this Section 9.02 to approve the
particular form of any proposed amendment or waiver, but it shall be sufficient
if such consent approves the substance thereof.


 


After an amendment,
supplement or waiver under this Section becomes effective, the Company shall
mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver.  Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. 
Subject to Sections 6.04 and 6.07, the Holders of a majority in aggregate
principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by any Issuer with any provision of
this Indenture, the Notes or the Note Security Documents.  However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder):


 


(a)  reduce the principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver;


 


(b)  reduce the rate of or change or have the
effect of changing the time for payment of interest, including defaulted
interest, on any Note;


 


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(c)  reduce the principal of or change or have the
effect of changing the fixed maturity of any Note or alter or waive any of the
provisions with respect to the redemption of the Notes, other than provisions
relating to Section 3.09, 4.10 or 4.15;


 


(d)  make any Note payable in money other than
that stated in the Notes;


 


(e)  make any change in the provisions of this
Indenture (i) relating to the right of each Holder of Notes to receive payments
of principal of and interest on such Note on or after the due date thereof or
to bring suit to enforce such payment or (ii) permitting Holders of less
than a majority in aggregate principal amount of the then outstanding Notes to
waive a Default;


 


(f)  after Issuers’ obligation to purchase Notes
arises thereunder, amend, change or modify in any material respect the
obligation of the Issuers to make and consummate a Change of Control Offer in
the event of a Change of Control or modify any of the provisions or definitions
with respect thereto after a Change of Control has occurred;


 


(g)  modify or change any provision of this
Indenture or the related definitions affecting the ranking of the Notes or any
Guarantee in a manner which adversely affects the Holders;


 


(h)  release any Guarantor that is a Significant
Subsidiary from any of its obligations under its Guarantee or this Indenture
otherwise than in accordance with the terms of this Indenture;


 


(i)  except as provided in Section 9.01 or
Section 2.16 of the Intercreditor Agreement, make any change in, or release
other than in accordance with this Indenture, any Note Security Document that,
taken as a whole, would materially adversely affect the Holders;


 


(j)  except as provided in the Intercreditor
Agreement, make any change in any Note Security Document or the provisions in this
Indenture dealing with Note Security Documents or application of proceeds of
the Collateral that, taken as a whole, would adversely affect the Holders; or


 


(k)  make any change in the foregoing amendment
and waiver provisions (except to increase any percentage set forth therein).


 


Except as provided in the
Intercreditor Agreement, without the consent of the holders of at least
two-thirds in aggregate principal amount of the Notes then outstanding, no
amendment or waiver may release from the Parity Junior Liens of the Indenture
and the Note Security Documents all or substantially all of the Collateral.


 


SECTION 9.03.                                         Compliance
with Trust Indenture Act.


 


Every amendment or
supplement to this Indenture or the Notes shall be set forth in a amended or
supplemental Indenture that complies with the TIA as then in effect.


 


SECTION 9.04.                                         Revocation
and Effect of Consents.


 


Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note
is a continuing consent by the Holder of a Note and every subsequent Holder of
a Note or portion of a Note that evidences the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any Note.  However, any such Holder of a Note or
subsequent Holder of a Note may revoke the consent as to its Note if the Trustee
receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective.  An
amendment, supplement or waiver


 


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becomes effective in accordance with its
terms and thereafter binds every Holder unless it is of the type described in
the last paragraph of Section 9.02. 
In case of an amendment or waiver of the type described in the second
paragraph of Section 9.02, the amendment or waiver shall bind each Holder who
has consented to it and every subsequent Holder of a Note that evidences the
same indebtedness as the Note of the consenting Holder.


 


SECTION 9.05.                                         Notation
on or Exchange of Notes.


 


The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated.  The Issuers in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.


 


Failure to make the appropriate
notation or issue a new Note shall not affect the validity and effect of such
amendment, supplement or waiver.


 


SECTION 9.06.                                         Trustee
to Sign Amendments, etc.


 


The Trustee shall sign any
amended or supplemental Indenture authorized pursuant to this Article 9 if the
amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. 
Neither Issuer may sign an amendment or supplemental indenture until the
Board of Directors of such Issuer approves such amendment or supplemental
indenture.  In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive and (subject
to Section 7.01) shall be fully protected in relying upon, in addition to the
documents required by Section 12.04, an Officer’s Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied.


 


SECTION 9.07.                                         Payment
for Consent.


 


Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
of Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless such
consideration is offered to all Holders of Notes and is paid to all Holders of
Notes that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.


 


ARTICLE 10


 


NOTE
SECURITY DOCUMENTS


 


SECTION 10.01.                                   Collateral
and Note Security Documents.


 


(a)  To secure the due and punctual payment of the
principal of and interest (including Additional Interest, if any) on the Notes
when and as the same shall be due and payable, whether on an interest payment
date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest
on the overdue principal of and interest (including Additional Interest, if
any) on the Notes and performance of all other Obligations of the Issuers and
the Guarantors to the Holders and the Trustee or the Parity Junior Lien
Collateral Agent on behalf of the Holders under this Indenture, the Notes and
the Note Security Documents, according to the terms hereunder or thereunder,
shall be secured as provided in the


 


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Note Security Documents, which define the terms of the Liens that
secure such Obligations, subject to the terms of the Intercreditor
Agreement.  The Trustee and the Issuers
hereby acknowledge and agree that the Parity Junior Lien Collateral Agent holds
the Collateral in trust for the benefit of the Trustee and the Holders, in each
case pursuant to the terms of the Note Security Documents.  Except as otherwise explicitly provided
herein, in the Intercreditor Agreement or the Note Security Documents, neither
the Trustee nor the Parity Junior Lien Collateral Agent nor any of their
respective officers, directors, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.  The Trustee and the Parity Junior Lien
Collateral Agent shall be accountable only for amounts that such Person
actually receives as a result of the exercise of such powers, and neither the
Trustee nor the Parity Junior Lien Collateral Agent nor any of their respective
officers, directors, employees or agents shall be responsible for any act or
failure to act hereunder, except for such Peron’s own willful misconduct, gross
negligence or bad faith.  Each Holder, by
accepting a Note, consents and agrees to the terms of the Note Security
Documents (including the provisions providing for foreclosure and release of
Collateral) as the same may be in effect or may be amended from time to time in
accordance with their terms and this Indenture, and authorizes and directs the
Trustee and the Parity Junior Lien Collateral Agent to enter into the Note
Security Documents and to perform their obligations and exercise their rights
thereunder in accordance therewith; provided, however, that if any of the provisions of the Note Security
Documents limit, qualify or conflict with the duties imposed by the provisions
of the TIA, the TIA shall control.  The Issuers
shall deliver to the Trustee copies of all documents delivered to the Parity
Junior Lien Collateral Agent pursuant to the Note Security Documents, and will
do or cause to be done all such acts and things as may be reasonably required
by the next sentence of this Section 10.01 (including the delivery of an
Officer’s Certificates or Opinions of Counsel from time to time), to assure and
confirm to the Trustee and the Parity Junior Lien Collateral Agent the security
interest in the Collateral contemplated hereby, by the Note Security Documents
or any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Notes
secured hereby, according to the intent and purposes herein expressed.  The Company shall take, and shall cause its
Subsidiaries to take, any and all actions reasonably required to cause the Note
Security Documents to create and maintain, as security for the Obligations of
the Issuers and the Guarantors hereunder, a valid and enforceable perfected
Lien and security interest in and on all of the Collateral (subject to the
terms of the Intercreditor Agreement), in favor of the Parity Junior Lien
Collateral Agent for the benefit of the Trustee and the Holders, second in
priority to any and all Liens and security interests at any time granted in the
Collateral to secure the Priority Lien Obligations.  Notwithstanding the foregoing, the Note
Security Documents may be amended from time to time to add other parties
holding other Priority Lien Obligations and other Parity Junior Lien
Obligations permitted to be incurred under Sections 4.09 and 4.12.


 


(b)  Notwithstanding the foregoing and
notwithstanding the fact that the following assets may secure Priority Lien
Obligations and other Parity Junior Lien Obligations,


 


(i)  the Capital Stock and securities of the
Subsidiaries of the Company (other than Finance Corp. and Neff Rental) that are
owned by the Company or any Guarantor will constitute Collateral only to the
extent that such Capital Stock and securities can secure the Notes without Rule
3-10 or Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-10” and “Rule 3-16,” respectively) (or any other law, rule or
regulation) requiring separate financial statements of such Subsidiary to be
filed with the SEC (or any other governmental agency);


 


(ii)  in the event that either Rule 3-10 or Rule
3-16 requires or is amended, modified or interpreted by the SEC to require (or
is replaced with another rule or regulation, or any other law, rule or
regulation is adopted, which would require) the filing with the SEC (or any
other


 


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governmental agency) of
separate financial statements of any Subsidiary (other than Neff Rental) due to
the fact that such Subsidiary’s Capital Stock and securities secure the Notes
or any Guarantee, then the Capital Stock and securities of such Subsidiary
shall automatically be deemed not to be part of the Collateral, but only to the
extent necessary to not be subject to such requirement (and, in such event, the
Note Security Documents may be amended or modified, without the consent of any
Holder of the Notes, to the extent necessary to release the second-priority
security interests on the shares of Capital Stock and securities that are so
deemed to no longer constitute part of the Collateral); and


 


(iii)  in the event that either Rule 3-10 or Rule
3-16 is amended, modified or interpreted by the SEC to permit (or is replaced
with another rule or regulation, or any other law, rule or regulation is
adopted, that would permit) such Subsidiary’s Capital Stock and securities to
secure the Notes in excess of the amount then pledged without the filing with
the SEC (or any other governmental agency) of separate financial statements of
such Subsidiary, then the Capital Stock and securities of such Subsidiary shall
automatically be deemed to be a part of the Collateral but only to the extent
necessary to not be subject to any such financial statement requirement (and,
in such event, the Note Security Documents may be amended or modified, without
the consent of any Holder of the Notes, to the extent necessary to subject to
the Liens under the Note Security Documents such additional Capital Stock and
securities).


 


SECTION 10.02.                                   Recordings
and Opinions.


 


(a)  The Issuers and the Guarantors will take or
cause to be taken all action required to maintain, preserve and protect the
Lien on the Collateral granted by the Note Security Documents, including
causing the Note Security Documents, instruments of further assurance and all
amendments or supplements thereto, to be promptly recorded, registered and
filed and at all times to be kept recorded, registered and filed, and will
execute and file statements and cause to be issued and filed statements, all in
such manner and in such places and at such times as are prescribed in the Note
Security Documents or in this Indenture as may be required by law fully to
preserve and protect the rights of the Holders and the Trustee under this
Indenture and the Note Security Documents to the Collateral.


 


The Issuers and the
Guarantors will from time to time promptly pay and discharge all recording or
filing fees, charges and taxes relating to the filing or registration of this
Indenture and the Note Security Documents, any amendments thereto and any other
instruments of further assurance.


 


(b)  The Issuers and the Guarantors shall furnish
to the Parity Junior Lien Collateral Agent and the Trustee, on or before the
time when the Issuers are required to provide annual reports pursuant to
Section 4.03 with respect to the preceding fiscal year, an Opinion of Counsel:


 


(1)  stating substantially to the
effect that, in the opinion of such counsel, such action has been taken with
respect to the recordings, registerings, filings, re-recordings,
re-registerings and re-filings of this Indenture, the Note Security Documents
and all financing statements, continuation statements or other instruments of
further assurance as is necessary to maintain the Lien of this Indenture or any
Note Security Documents in the Collateral and reciting with respect to the
security interests in such Collateral the details of such action or referencing
to prior Opinions of Counsel in which such details are given; or


 


(2)  to the effect that, in the
opinion of such counsel, no such action is necessary to maintain such Lien
under this Indenture and the Note Security Documents.


 


(c)  The Issuers shall comply with the provisions
of TIA § 314(b) and (d).


 


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SECTION 10.03.                                   Release
of Collateral.


 


(a)  Subject to subsections (b) and (c) of this
Section 10.03, Collateral may be released from the Lien and security interest
created by the Note Security Documents at any time or from time to time in
accordance with the provisions of the Note Security Documents or as provided
herein.  Upon the request of the Issuers
pursuant to an Officer’s Certificate certifying that all conditions precedent
hereunder have been met, the Issuers and the Guarantors will be entitled to a
release of assets and property included in the Collateral from the Liens
securing the Notes, and the Parity Junior Lien Collateral Agent and the Trustee
shall release the same from such Liens at the Issuers’ sole cost and expense,
under one or more of the following circumstances:


 


(1)  as to any Collateral that is
sold, transferred or otherwise disposed of by the Issuers, Neff Rental or any
other Grantor to a Person that is not (either before or after such sale,
transfer or disposition) the Company or a Restricted Subsidiary of the Company
in a transaction that complies with Section 4.10 and is permitted by all of the
other Secured Debt Documents, at the time of such sale, to transfer or
otherwise dispose of such Collateral to the extent of the interest sold,
transferred or otherwise disposed of; provided that
the Parity Junior Lien Collateral Agent’s Liens upon the Collateral will not be
released if the sale or disposition is subject to Article 5;


 


(2)  as to any Collateral that is
sold or otherwise disposed in connection with the enforcement or exercise of
any rights or remedies with respect to the Collateral, including any
disposition of Collateral;


 


(3)  if written consent to the
release of all Priority Liens on such Collateral has been given by the Required
Priority Lien Debtholders in accordance with the Intercreditor Agreement; provided, however, that this clause (3) will not apply
to any release of all or substantially all of the Collateral;


 


(4)  if (a) consent to the
release of that Collateral has been given by the requisite percentage or number
of holders of each Series of Secured Debt at the time outstanding as provided
for in the applicable Secured Debt Documents (which for purposes of this Indenture
shall be the percentage specified in the last paragraph of Section 9.02) and
(b) the Issuers have delivered an Officer’s Certificate to the Parity Junior
Lien Collateral Agent certifying that all such necessary consents have been
obtained; provided, however,
that this clause (4) will only apply to a release of all or substantially all
of the Collateral;


 


(5)  upon satisfaction and
discharge of this Indenture as set forth in Article 8;


 


(6)  upon a Legal Defeasance or
Covenant Defeasance of the Notes as set forth in Article 8; and


 


(7)  upon payment in full and
discharge of all Notes outstanding under this Indenture and all Obligations
that are outstanding, due and payable under this Indenture at the time the
notes are paid in full and discharged.


 


Until the Discharge of
Priority Lien Obligations, subject to and in accordance with the Intercreditor
Agreement, the proceeds of any Sale of Collateral received by the Trustee or
the Parity Junior Lien Collateral Agent pursuant to this Section 10.03 shall be
held by the Trustee for the benefit of the Holders as Collateral.


 


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Notwithstanding the
foregoing, if a Default under this Indenture exists on the date on which the
Priority Lien Obligations are repaid in full and terminated (including all
commitments and letters of credit thereunder), the Parity Junior Liens on the
Collateral securing the Notes will not be released, except to the extent the
Collateral or any portion thereof was disposed of in order to repay the
Priority Lien Obligations secured by the Collateral, and thereafter the Trustee
(acting at the direction of the holders of a majority of outstanding principal
amount of the Notes) will have the right to direct the Parity Junior Lien
Collateral Agent to foreclose upon the Collateral (but in such event, the Liens
on the Collateral securing the Notes will be released when such Default and all
other Defaults under this Indenture cease to exist).


 


(b)  Except as otherwise provided in the
Intercreditor Agreement, no Collateral may be released from the Lien and
security interest created by the Note Security Documents (other than the
Intercreditor Agreement) unless the Officer’s Certificate required by this
Section 10.03, dated not more than five days prior to the date of the
application for such release, has been delivered to the Parity Junior Lien
Collateral Agent and the Trustee.


 


Upon receipt of such Officer’s
Certificate and any necessary or proper instruments of termination,
satisfaction or release prepared by the Issuers, the Parity Junior Lien
Collateral Agent shall execute, deliver or acknowledge such instruments or
releases to evidence the release of any Collateral permitted to be released
pursuant to this Indenture or the Note Security Documents or the Intercreditor
Agreement.


 


(c)  At any time when a Default has occurred and
is continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise) and the Trustee has delivered a notice of
acceleration to the Parity Junior Lien Collateral Agent, no release of
Collateral pursuant to the provisions of this Indenture or the Note Security
Documents will be effective as against the Holders, except as otherwise
provided in the Intercreditor Agreement.


 


SECTION 10.04.                                   Permitted
Releases Not To Impair Lien; Trust Indenture Act Requirements.


 


The release of any
Collateral from the terms hereof and of the Note Security Documents or the
release of, in whole or in part, the Liens created by the Note Security
Documents, will not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral or
Liens are released pursuant to (a) the applicable Security Documents and the
terms of this Article 10 or (b) the Intercreditor Agreement.  The Trustee and each of the Holders
acknowledge that a release of Collateral or a Lien in accordance with the terms
of the Note Security Documents and the Intercreditor Agreement and of this
Article 10 will not be deemed for any purpose to be an impairment of the Lien
on the Collateral in contravention of the terms of this Indenture.  To the extent applicable, the Issuers and
each other obligor on the Notes shall cause TIA § 313(b), relating to reports,
and TIA § 314(d), relating to the release of property or securities from the
Lien hereof and of the Note Security Documents, to be complied with.  Any certificate or opinion required by §
314(d) of the TIA may be made by an Officer of the Company, except in cases
which § 314(d) of the TIA requires that such certificate or opinion be made by
an independent Person, which Person shall be an independent engineer, appraiser
or other expert selected or approved by the Trustee and the Parity Junior Lien
Collateral Agent in the exercise of reasonable care.


 


SECTION 10.05.                                   Certificates
of the Trustee.


 


In the event that the Issuers
wish to release Collateral in accordance with this Indenture and the Note
Security Documents and the Issuers have delivered the certificates and
documents to the extent required by the Note Security Documents and Section
10.03 hereof, the Trustee will determine


 


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whether it has received all documentation
required by TIA § 314(d) in connection with such release and, based on such
determination, will promptly (but in any event within five Business Days) deliver
a certificate to the Parity Junior Lien Collateral Agent setting forth such
determination.


 


SECTION 10.06.                                   Suits
To Protect the Collateral.


 


Subject to the provisions of
Article 7 hereof and the Intercreditor Agreement, the Trustee in its sole
discretion and without the consent of the Holders, on behalf of the Holders,
may or may direct the Parity Junior Lien Collateral Agent to take all actions
it deems necessary or appropriate in order to:


 


(a)  enforce any of the terms of the Note Security
Documents; and


 


(b)  collect and receive any and all amounts
payable in respect of the Obligations of the Issuers hereunder.


 


Subject to the provisions of
the Note Security Documents, the Trustee shall have power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts which may be unlawful or in violation
of any of the Note Security Documents or this Indenture, and such suits and
proceedings as the Trustee, in its sole discretion, may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or
order would impair the Lien on the Collateral or be prejudicial to the
interests of the Holders or the Trustee).


 


SECTION 10.07.                                   Authorization
of Receipt of Funds by the Trustee Under the Note Security Documents.


 


Subject to the provisions of
the Intercreditor Agreement, the Trustee is authorized to receive any funds for
the benefit of the Holders distributed under the Note Security Documents, and
to make further distributions of such funds to the Holders according to the
provisions of this Indenture.


 


SECTION 10.08.                                   Purchaser
Protected.


 


In no event shall any
purchaser in good faith of any property purported to be released hereunder be
bound to ascertain the authority of the Parity Junior Lien Collateral Agent or
the Trustee to execute the release or to inquire as to the satisfaction of any
conditions required by the provisions hereof for the exercise of such authority
or to see to the application of any consideration given by such purchaser or
other transferee; nor shall any purchaser or other transferee of any property
or rights permitted by this Article 10 to be sold be under any obligation to
ascertain or inquire into the authority of the Issuers or the applicable
Guarantor to make any such sale or other transfer.


 


SECTION 10.09.                                   Powers
Exercisable by Receiver or Trustee.


 


In case the Collateral shall
be in the possession of a receiver or trustee, lawfully appointed, the powers
conferred in this Article 10 upon the Issuers or a Guarantor with respect to
the release, sale or other disposition of such property may be exercised by
such receiver or trustee, and an instrument signed by such receiver or trustee
shall be deemed the equivalent of any similar instrument of the Issuers or a
Guarantor or of any officer or officers thereof required by the provisions of
this Article 10;


 


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and if the Trustee shall be in the possession
of the Collateral under any provision of this Indenture, then such powers may
be exercised by the Trustee.


 


SECTION 10.10.                                   Release
Upon Termination of the Issuers’ Obligations.


 


In the event that the Issuers
deliver to the Trustee, in form and substance acceptable to it, an Officer’s
Certificate certifying that all the obligations under this Indenture, the Notes
and the Note Security Documents have been satisfied and discharged by complying
with the provisions of Article 8 and Section 7.07 or by the payment in full of
the Issuers’ Obligations under the Notes, this Indenture and the Note Security
Documents, and all such Obligations have been so satisfied, the Trustee shall
deliver to the Issuers and the Parity Junior Lien Collateral Agent a notice
stating that the Trustee, on behalf of the Holders, disclaims and gives up any
and all rights it has in or to the Collateral (other than with respect to funds
held by the Trustee pursuant to Article 8), and any rights it has under the
Note Security Documents, and upon receipt by the Parity Junior Lien Collateral
Agent of such notice, the Parity Junior Lien Collateral Agent shall be deemed
not to hold a Lien in the Collateral on behalf of the Trustee and shall do or
cause to be done all acts reasonably necessary to release such Lien as soon as
is reasonably practicable.


 


SECTION 10.11.                                   Parity
Junior Lien Collateral Agent.


 


(a)  Wells Fargo Bank, National Association shall
initially act as Parity Junior Lien Collateral Agent and shall be authorized to
appoint co-Parity Junior Lien Collateral Agent as necessary in its sole
discretion. Except as otherwise explicitly provided herein or in the Note
Security Documents or the Intercreditor Agreement, neither the Parity Junior
Lien Collateral Agent nor any of its respective officers, directors, employees
or agents shall be liable for failure to demand, collect or realize upon any of
the Collateral or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of any other
Person or to take any other action whatsoever with regard to the Collateral or
any part thereof.  The Parity Junior Lien
Collateral Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither the Parity
Junior Lien Collateral Agent nor any of its officers, directors, employees or
agents shall be responsible for any act or failure to act hereunder, except for
its own willful misconduct, gross negligence or bad faith.  The Parity Junior Lien Collateral Agent is
entitled to all of the rights, protections, immunities and indemnities of the
Trustee set forth in Article VII hereto.


 


(b)  The Parity Junior Lien Collateral Agent is
authorized and directed to (i) enter into the Note Security Documents, (ii)
bind the Holders on the terms as set forth in the Note Security Documents and
(iii) perform and observe its obligations under the Note Security Documents.


 


(c)  If either Issuer (i) incurs Priority Lien
Obligations at any time when no intercreditor agreement is in effect or at any
time when Indebtedness constituting Priority Lien Obligations entitled to the
benefit of an existing Intercreditor Agreement is concurrently retired, and
(ii) delivers to the Parity Junior Lien Collateral Agent an Officer’s
Certificate so stating and requesting the Parity Junior Lien Collateral Agent
to enter into an intercreditor agreement (on substantially the same terms as
the Intercreditor Agreement in effect on the Issue Date) in favor of a
designated agent or representative for the holders of the Priority Lien
Obligations so incurred, the Parity Junior Lien Collateral Agent shall (and is
hereby authorized and directed to) enter into such intercreditor agreement,
bind the Holders on the terms set forth therein and perform and observe its
obligations thereunder.


 


SECTION 10.12.                                   Designations.


 


Except as provided in the
next sentence, for purposes of the provisions hereof and the Intercreditor
Agreement requiring the Issuers to designate Indebtedness for the purposes of
the terms


 


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“Priority Lien Obligations” and “Parity
Junior Lien Obligations” or any other such designations hereunder or under the
Intercreditor Agreement, any such designation shall be sufficient if the
relevant designation is set forth in writing, signed on behalf of the Issuers
by an Officer and delivered to the Trustee, the Parity Junior Lien Collateral
Agent, the other Parity Junior Lien Representatives and the Priority Lien
Representatives.  For all purposes hereof
and the Intercreditor Agreement, the Company hereby designates the Obligations
pursuant to the ABL Credit Facility (to the extent such Indebtedness is not
Refinanced with Parity Junior Lien Debt that would reduce the Priority Lien Cap)
as “Priority Lien Obligations.”


 


SECTION 10.13.                                   Relative
Rights.


 


Nothing contained in this
Article 10 or elsewhere in this Indenture or in the Notes is intended to or
shall:


 


(a)  impair, as between the Issuers and the
Guarantors and the Holders of the Notes, the Obligation of the Issuers, which
is absolute and unconditional, to pay to the Holders the principal of, premium,
interest and Additional Interest, if any, on the Notes as and when the same
shall become due and payable in accordance with their terms or any other
obligation of the Issuer or any other Grantor;


 


(b)  affect the relative rights of Holders of
Notes as against any other creditors of the Issuers or any other Grantor (other
than holders of Priority Liens, Permitted Liens or other Parity Junior Liens);


 


(c)  restrict the right of any Holder of Notes to
sue for payments that are then due and owing (but not enforce any judgment in
respect thereof against any Collateral to the extent specifically prohibited by
the Intercreditor Agreement);


 


(d)  restrict or prevent any Holder of Notes or
other Parity Junior Lien Obligations, the Parity Junior Lien Collateral Agent
or any other Parity Junior Lien Representative from exercising any of its
rights or remedies upon a Default not specifically restricted or prohibited by
the Intercreditor Agreement; or


 


(e)  restrict or prevent any Holder of Notes or
other Parity Junior Lien Obligations, the Parity Junior Lien Collateral Agent
or any other Parity Junior Lien Representative from taking any lawful action in
an Insolvency or Liquidation Proceeding not specifically restricted or
prohibited by the Intercreditor Agreement.


 


ARTICLE 11


 


GUARANTEES


 


SECTION 11.01.                                   Guarantee.


 


Subject to this Article 11,
each of the Guarantors hereby, jointly and severally, unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the obligations of the
Issuers hereunder or thereunder, that: 
(a) the principal of, premium, if any, and interest on the Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium, if
any, and interest on the Notes, if any, if lawful, and all other obligations of
the Issuers to the Holders or the Trustee hereunder or


 


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thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. 
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors shall be jointly and
severally obligated to pay the same immediately.  Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.


 


The Guarantors hereby agree
that their obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any provisions hereof or thereof, the recovery of
any judgment against the Issuers, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.  Each Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with
a court in the event of insolvency or bankruptcy of any Issuer, any right to
require a proceeding first against any Issuer, protest, notice and all demands
whatsoever and covenant that this Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and this
Indenture or pursuant to Section 11.06.


 


If any Holder or the Trustee
is required by any court or otherwise to return to the Issuers, the Guarantors
or any custodian, trustee, liquidator or other similar official acting in relation
to either the Issuers or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.


 


Each Guarantor agrees that
it shall not be entitled to any right of subrogation in relation to the Holders
in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.  Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration
of such obligations as provided in Article 6, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee.  The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Guarantee.


 


SECTION 11.02.                                   Limitation
on Guarantor Liability.


 


Each Guarantor, and by its
acceptance of Notes, each Holder, hereby confirms that it is the intention of
all such parties that the Guarantee of such Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to any Guarantee.  To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor under its Guarantee and this Article 11 shall be
limited to the maximum amount as will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Guarantor that
are relevant under such laws (including all Senior Debt of such Guarantor), and
after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance.


 


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SECTION 11.03.                                   Execution
and Delivery of Guarantee.


 


To evidence its Guarantee
set forth in Section 11.01, each Guarantor hereby agrees that a notation
of such Guarantee substantially in the form included in Exhibit B shall
be endorsed by an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf of
such Guarantor by its President, any Vice President, Secretary or Treasurer.


 


Each Guarantor hereby agrees
that its Guarantee set forth in Section 11.01 shall remain in full force
and effect notwithstanding any failure to endorse on each Note a notation of
such Guarantee.


 


If an Officer whose
signature is on this Indenture or on the Guarantee no longer holds that office
at the time the Trustee authenticates the Note on which a Guarantee is
endorsed, the Guarantee shall be valid nevertheless.


 


The delivery of any Note by
the Trustee, after the authentication thereof hereunder, shall constitute due
delivery of the Guarantee set forth in this Indenture on behalf of the
Guarantors.


 


In the event that the
Company creates or acquires any new Subsidiaries subsequent to the date of this
Indenture, if required by Section 4.18, the Company shall cause such
Subsidiaries to execute supplemental indentures to this Indenture and
Guarantees in accordance with Section 4.18 and this Article 11, to the extent
applicable.


 


SECTION 11.04.                                   Guarantors
May Consolidate, etc., on Certain Terms.


 


Each Guarantor shall not,
and the Company shall not cause or permit any Guarantor to, consolidate with or
merge with or into, or transfer all or substantially all of its assets to any other
Person other than the Company or any other Guarantor unless:


 


(1)                                  the entity formed by or surviving any such
consolidation or merger (if other than the Guarantor) is a corporation,
partnership or limited liability company organized and validly existing under
the laws of the United States or any State thereof or the District of Columbia;


 


(2)                                  such entity assumes by supplemental indenture
all of the Obligations of the Guarantor on its Guarantee;


 


(3)                                  immediately after giving effect to such
transaction, no Default shall have occurred and be continuing; and


 


(4)                                  immediately after giving effect to such
transaction and the use of any net proceeds therefrom on a pro forma basis, the
Company could satisfy Section 5.01(a)(2).


 


Notwithstanding the
foregoing, any merger or consolidation of a Guarantor with and into the Company
(with the Company being the surviving entity) or another Guarantor need only
comply with clause (4) above.


 


In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Guarantee endorsed upon
the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor, such successor
Person shall succeed to and be substituted for the Guarantor with the same
effect as if it


 


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had been named herein as a Guarantor.  Such successor Person thereupon may cause to
be signed any or all of the Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Issuers
and delivered to the Trustee.  All the
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Guarantees
had been issued at the date of the execution hereof.


 


SECTION 11.05.                                   Releases
Following Certain Events.


 


The Guarantee of a Guarantor
will be automatically and unconditionally released, without any further action
required on the part of the Trustee or any Holder:


 


(1)           upon
the sale or other disposition of all or substantially all of the assets of that
Guarantor (including by way of merger or consolidation), or of the Capital
Stock of that Guarantor, to a Person that is not (either before or after giving
effect to such transaction) the Company or a Restricted Subsidiary of the
Company, if the sale or other disposition is permitted by this Indenture and if
in connection therewith the Company provides an Officer’s Certificate to the
Trustee to the effect that the Company will comply with its obligations under
Section 4.10 in respect of such sale or other disposition; provided,
however, that in the case of the consolidation, merger or transfer
of all or substantially all the assets of such Guarantor if such other Person
is not an Issuer or a Guarantor, such Guarantor’s obligations under its
Guarantee must be expressly assumed by such other Person, except that such
assumption will not be required in the case of:


 


(A)                              the sale or other disposition (including by
way of consolidation or merger) of a Guarantor, including the sale or
disposition of Capital Stock of a Guarantor following which such Guarantor is
no longer a Subsidiary; or


 


(B)                                the sale or disposition of all or
substantially all the assets of a Guarantor;


 


provided, however, that
such Guarantor is released from its guarantees, if any, of, and all pledges and
security, if any, granted in connection with, each Credit Facility and any
other Indebtedness of the Company or any Restricted Subsidiary of the
Company.  Upon any sale or disposition
described in clause (A) or (B) above, the obligor on the related Guarantee
automatically will be released from its obligations thereunder;


 


(2)            if
the Company designates any Restricted Subsidiary that is a Guarantor, other
than Neff Rental, to be an Unrestricted Subsidiary in accordance with Section
4.07 and the definition of “Unrestricted Subsidiary”;


 


(3)            at
such time as such Guarantor, other than Neff Rental, does not have any Indebtedness
outstanding that would have required such Guarantor to provide a Guarantee
pursuant Section 4.18;


 


(4)            upon
Legal Defeasance, Covenant Defeasance or satisfaction and discharge of the
Notes as provided in Article 8; or


 


(5)            at
such time as such Guarantor ceases to be a Subsidiary of the Company as a
result of any foreclosure of any pledge or security interest in favor of
Priority Lien Obligations, subject to, in each case, the application of the
proceeds of such foreclosure as provided in the Intercreditor Agreement.


 


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Any Guarantor not released
from its obligations under its Guarantee shall remain liable for the full
amount of principal of and interest on the Notes and for the other obligations
of any Guarantor under this Indenture as provided in this Article 11.


 


ARTICLE 12


 


MISCELLANEOUS


 


SECTION 12.01.                                   Trust
Indenture Act Controls.


 


Prior to the effectiveness
of the Registration Statement, this Indenture shall incorporate and be governed
by the provisions of the TIA that are required to be part of and to govern
indentures qualified under the TIA. 
After the effectiveness of the Registration Statement, this Indenture
shall be subject to the provisions of the TIA that are required to be a part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.


 


SECTION 12.02.                                   Notices.


 


Any notice or communication
by any Issuer, any Guarantor or the Trustee to the others is duly given if in
writing and delivered in person or mailed by first class mail (registered or
certified, return receipt requested), telex, telecopier or overnight air
courier guaranteeing next day delivery, to the others’ address:


 


If to any
Issuer or any Guarantor:


 


Neff Corp.


3750 N.W. 87th
Avenue


Suite 400


Miami, FL
33178


Facsimile
No.:  (305) 513-4156


Attention:  Chief Financial Officer


 


with copies
to:


 


Latham &
Watkins LLP


885 Third
Avenue, Suite 1000


New York, NY
10022


Facsimile
No.:  (212) 751-4864


Attention:  Kirk A. Davenport, Esq.


 


If to the Trustee:


 


Wells Fargo
Bank, National Association


213 Court
Street, Suite 703


Middletown, CT
06457


Facsimile
No.:  (860) 704-6219


Attention:  Joseph O’Donnell


 


Any Issuer, any Guarantor or
the Trustee, by notice to the others may designate additional or different
addresses for subsequent notices or communications.


 


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All notices and
communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery.


 


Any notice or communication
to a Holder shall be mailed by first class mail, certified or registered,
return receipt requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the register kept by the Registrar.  Any notice or communication shall also be so
mailed to any Person described in TIA § 313(c), to the extent required by
the TIA.  Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.


 


If a notice or communication
is mailed in the manner provided above within the time prescribed, it is duly
given, whether or not the addressee receives it.


 


If an Issuer mails a notice
or communication to Holders, it shall mail a copy to the Trustee and each Agent
at the same time.


 


SECTION 12.03.                                   Communication
by Holders of Notes with Other Holders of Notes.


 


Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights
under this Indenture or the Notes.  The Issuers,
the Trustee, the Registrar and anyone else shall have the protection of TIA
§ 312(c).


 


SECTION 12.04.                                   Certificate
and Opinion as to Conditions Precedent.


 


Upon any request or
application by the Issuers to the Trustee to take any action under this
Indenture, the Issuers shall furnish to the Trustee:


 


(a)  an Officer’s Certificate in
form and substance reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 12.05) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and


 


(b)  an Opinion of Counsel in
form and substance reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 12.05) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been satisfied.


 


SECTION 12.05.                                   Statements
Required in Certificate or Opinion.


 


Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this
Indenture (other than a certificate provided pursuant to TIA § 314(a)(4))
shall comply with the provisions of TIA § 314(e) and shall include:


 


(a)  a statement that the Person
making such certificate or opinion has read such covenant or condition;


 


(b)  a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based;


 


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(c)  a statement that, in the
opinion of such Person, he or she has or they have made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and


 


(d)  a statement as to whether or
not, in the opinion of such Person, such condition or covenant has been
satisfied.


 


SECTION 12.06.                                   Rules
by Trustee and Agents.


 


The Trustee may make
reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.


 


SECTION 12.07.                                   No
Personal Liability of Directors, Officers, Employees, Stockholders and Members.


 


No past, present or future
director, officer, employee, incorporator, stockholder or member of any Issuer
or any Guarantor, as such, shall have any liability for any obligations of any
Issuer or any Guarantor under the Notes, any Guarantee, this Indenture or the
Note Documents or for any claim based on, in respect of, or by reason of, such
obligations or their creation.  Each
Holder by accepting a Note waives and releases all such liability.  The waiver and release are part of the consideration
for issuance of the Notes.


 


SECTION 12.08.                                   Governing
Law.


 


THIS INDENTURE, THE NOTE
SECURITY DOCUMENTS AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 12.09.                                   No
Adverse Interpretation of Other Agreements.


 


This Indenture may not be
used to interpret any other indenture, loan or debt agreement of the Company or
its Subsidiaries or of any other Person. 
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.


 


SECTION 12.10.                                   Successors.


 


All agreements of the Issuers
and the Guarantors in this Indenture and the Notes shall bind their successors.  All agreements of the Trustee in this
Indenture shall bind its successors.


 


SECTION 12.11.                                   Severability.


 


In case any provision in
this Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.


 


SECTION 12.12.                                   Counterpart
Originals.


 


The parties may sign any
number of copies of this Indenture.  Each
signed copy shall be an original, but all of them together represent the same
agreement.


 


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SECTION 12.13.                                   Table
of Contents, Headings, etc.


 


The Table of Contents, Cross-Reference
Table and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part of
this Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.


 


SECTION 12.14.                                   Indenture
Controls.


 


If and to the extent that
any provision of the Notes limits, qualifies or conflicts with a provision of
this Indenture, such provision of this Indenture shall control.


 


 


[Signature pages(s) follow]


 


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


 


	
   

  	
  NEFF
  RENTAL LLC,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEFF
  FINANCE CORP.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEFF
  RENTAL, INC.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION, as Trustee,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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Schedule I


 


SCHEDULE OF GUARANTORS


 


The following
schedule lists each Guarantor under the Indenture as of the Issue Date:


 


Neff Rental, Inc.