EXHIBIT
4.3


 


EXECUTION
COPY


 




 





NEFF RENTAL LLC



and



NEFF FINANCE CORP.,

as Issuers


 


the GUARANTORS named herein,


 


 


and


 


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION,

as Trustee


 


AMENDED AND RESTATED INDENTURE


 


Dated as of June 3, 2005

and Amended and Restated

as of July 8, 2005


 


13% Senior Subordinated Notes
due 2013




 





 





















 


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)(2)

  	
   

  	
  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.

  
	
   

  	
  (e)

  	
   

  	
  12.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.01(b)

  
	
   

  	
  (b)

  	
   

  	
  7.05; 12.02

  
	
   

  	
  (c)

  	
   

  	
  7.01(a)

  
	
   

  	
  (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)

  	
   

  	
  2.12

  
	
  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 the 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.

  	
  Defaulted Interest

  	
   

  
	
  SECTION 2.13.

  	
  CUSIP Numbers

  	
   

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  



 


i





















 


	
  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.

  	
  No Senior Subordinated Debt

  	
   

  
	
  SECTION 4.17.

  	
  Future Guarantees by Subsidiaries

  	
   

  
	
  SECTION 4.18.

  	
  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

  	
   

  
	
  SECTION 7.04.

  	
  Trustee’s Disclaimer

  	
   

  



 


ii





















 


	
  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

  	
   

  
	
   

  	
   

  	
   

  
	
  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 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

  	
   

  
	
   

  	
   

  
	
  SUBORDINATION

  	
   

  
	
   

  	
   

  
	
  SECTION 10.01.

  	
  Agreement to Subordinate

  	
   

  
	
  SECTION 10.02.

  	
  Liquidation; Dissolution; Bankruptcy

  	
   

  
	
  SECTION 10.03.

  	
  Default on Designated Senior Debt

  	
   

  
	
  SECTION 10.04.

  	
  Acceleration of Notes

  	
   

  
	
  SECTION 10.05.

  	
  When Distribution Must Be Paid Over

  	
   

  
	
  SECTION 10.06.

  	
  Notice by Issuers

  	
   

  
	
  SECTION 10.07.

  	
  Subrogation

  	
   

  
	
  SECTION 10.08.

  	
  Relative Rights

  	
   

  
	
  SECTION 10.09.

  	
  Subordination May Not Be Impaired by
  Issuers

  	
   

  
	
  SECTION 10.10.

  	
  Distribution or Notice to Representative

  	
   

  
	
  SECTION 10.11.

  	
  Rights of Trustee and Paying Agent

  	
   

  



 


iii





















 


	
  SECTION 10.12.

  	
  Authorization to Effect Subordination

  	
   

  
	
  SECTION 10.13.

  	
  Amendments

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
   

  	
   

  
	
  GUARANTEES

  	
   

  
	
   

  	
   

  
	
  SECTION 11.01.

  	
  Guarantee

  	
   

  
	
  SECTION 11.02.

  	
  Subordination of Guarantee

  	
   

  
	
  SECTION 11.03.

  	
  Limitation on Guarantor Liability

  	
   

  
	
  SECTION 11.04.

  	
  Execution and Delivery of Guarantee

  	
   

  
	
  SECTION 11.05.

  	
  Guarantors May Consolidate, etc., on
  Certain Terms

  	
   

  
	
  SECTION 11.06.

  	
  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

  	
   

  



 


EXHIBITS


	
  Exhibit A

  	
  FORM OF
  NOTE

  
	
  Exhibit B

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  
	
  Exhibit C

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  
	
  Exhibit D

  	
  FORM OF
  CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  
	
  Exhibit E

  	
  FORM OF
  GUARANTEE NOTATION

  
	
  Exhibit F

  	
  FORM OF
  SUPPLEMENTAL INDENTURE

  



 


iv





















 


INDENTURE, dated as of June 3, 2005, and amended and restated as
of July 8, 2005, among Neff Rental LLC., a Delaware limited liability
company (the “Company”), Neff Finance Corp., a
Delaware corporation (“Finance Corp.”
and, together with the Company, the “Issuers”) the
Guarantors (as defined herein) and Wells Fargo Bank, National Association, a national
banking association, as trustee (the “Trustee”).


 


WHEREAS, Neff Corp. (the “Parent”), the
Guarantors and the Trustee are parties to an Indenture dated as of June 3,
2005 (the “Existing Indenture”);


 


WHEREAS, the Parent, the Issuers, the Guarantors and the Trustee desire
to amend and restate the Existing Indenture in its entirety; and


 


WHEREAS, the consent of the Parent and the holders holding a majority
in aggregate principal amount of the notes issued under the Existing Indenture
to such amendment and restatement has been received;


 


NOW THEREFORE, the Issuers, the Guarantors and the Trustee agree to
amend and restate the Existing Indenture in its entirety as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Notes:


 


ARTICLE 1


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.01.                                              Definitions.


 


“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.


 


“Adjusted Treasury Rate”
means, with respect to any redemption date, (i) 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, 2007 yields for the two published maturities most
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 (ii) 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 (i) 1.00%
of the principal amount of such Note and (ii) the excess of (A) the
present value at such redemption date of (1) the redemption price of such Note
on June 15, 2007 (such redemption price being described in Section 3.07(a) exclusive
of any accrued interest) plus (2) all required remaining scheduled
interest payments due on such Note through June 15, 2007 (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.


 


“Applicable Procedures” means, with
respect to any transfer or exchange of or for beneficial interests in any
Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer or exchange.


 


“Asset Acquisition” means (a) 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 (b) 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;


 


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


 


2





















 


(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.


 


“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)


 


3





















 


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,
U.S. Code or any similar federal, state or foreign bankruptcy, insolvency,
receivership or similar law for the relief of debtors.


 


“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.


 


“Bridge Facility” means the second lien
senior secured bridge loan agreement dated as of the Issue Date among Parent, Neff
Rental as Guarantor and Credit Suisse, together with the related documents
thereto (including, without limitation, 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 whether by the
same or any other lender or group of lenders and whether by the same agent or a
different agent.


 


“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


 


4





















 


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;


 


(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;


 


5





















 


(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).


 


“Clearstream”
means Clearstream Banking, S.A.


 


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


 


“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, without limitation, 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, 2007, 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,
2007.


 


“Comparable Treasury Price”
means, with respect to any redemption date, if clause (ii) 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





















 


(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, without
limitation, all restructuring costs, litigation settlements or losses and any
expense or charge related to the 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, without limitation:


 


(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)


 


7





















 


for such Four-Quarter Period that at the time of the calculation have occurred
or are reasonably expected to occur within the 12 months immediately following
the applicable Asset Acquisition or Asset Sale, in the reasonable judgment of
the chief financial officer of the Company (regardless of whether those expense
and cost reductions or operating improvements could then be reflected in pro
forma financial statements in accordance with GAAP, 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”:


 


(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).


 


8





















 


“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 and/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 such
Consolidated Net Income; provided further, however,
 that there shall not be
included in such Consolidated Net Income:


 


(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;


 


9





















 


(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, without limitation, 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.”


 


“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 after giving effect to the Transactions;
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 one or more
debt facilities (including, without limitation, the New Credit Facility and the
Bridge Facility) 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) and/or letters of credit, bank guarantees or banker’s
acceptances, in each case, as amended, restated, supplemented, modified,
increased, renewed, refunded, replaced (whether


 


10





















 


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
Section 2.06, 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.


 


“Demand Registration” has the meaning set
forth in the Registration Rights Agreement.


 


“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.


 


“Designated Senior Debt” means:


 


(1)                                  Indebtedness
under or in respect of the New Credit Facility; and


 


(2)                                  any
other Indebtedness constituting Senior Debt which, at the time of
determination, has an aggregate principal amount of at least $25.0 million and
is specifically designated in the instrument evidencing such Senior Debt as “Designated
Senior Debt” by the applicable Issuer or the applicable Guarantor, as the case
may be.


 


“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


 


11





















 


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 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.


 


“Euroclear” means Euroclear Bank,
S.A./N.V., as operator of the Euroclear System.


 


“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 any notes
registered under the Securities Act issued in exchange for the Notes pursuant
to 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 (a) Section 4.10(1) and
clause (j) of the definition of “Asset Sale,” fair market value with respect to
Asset Sales (i) of less than $7.5 million shall be determined in good
faith by senior management of the Company and (ii) 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 (b) 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.


 


12





















 


“Final Registration Date” means the first
date on which all of the Notes have been registered under the Securities Act or
exchanged for notes registered under the Securities Act, in each case, pursuant
to the terms of the Registration Rights Agreement, or are no longer Transfer
Restricted Securities (as defined in the Registration Rights Agreement).


 


“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


 


(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 Section 2.06(g)(ii) 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,
or 2.06.


 


“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.


 


“Guarantee” means the senior subordinated
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.


 


13





















 


“IAI Global Note” means the global Note
in the form of Exhibit A hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee that may be issued in a denomination
equal to the outstanding principal amount of the Notes sold to Institutional
Accredited Investors.


 


“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;


 


(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.


 


14





















 


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.


 


“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.


 


“Indirect Participant” means a Person who
holds a beneficial interest in a Global Note through a Participant.


 


“Initial Notes” means $80.0 million in
aggregate principal amount of 13% Senior Subordinated Notes due 2013 of the
Issuers issued as of the Issue Date for so long as such securities constitute
Restricted Securities.


 


“Institutional Accredited Investor” means
an institution that is an “accredited investor” as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act, that is not also a QIB.


 


“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


 


15





















 


applying a fixed or a floating rate of interest
on the same notional amount and shall include, without limitation, 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, without
limitation, 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.


 


“Iron Merger Sub” means Iron Merger Sub, Inc.,
a Delaware corporation, and its successors.


 


“Issue Date” means the date of original
issuance of the Notes on June 3, 2005.


 


“Issuer” means the Company or Finance
Corp.


 


“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.


 


“Letter of Transmittal” means the letter
of transmittal to be prepared by the Company and sent to all Holders of the
Notes for use by such Holders in connection with an Exchange Offer.


 


“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 the Issue Date, by and among the 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.


 


16





















 


“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, without
limitation, 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, without limitation, 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.


 


“New Credit Facility” means the Amended
and Restated Credit Agreement dated as of the Issue Date and amended and
restated as of July 8, 2005 among the Issuers, Neff Rental, the lenders
party thereto in their capacities as lenders thereunder and General Electric
Capital Corporation, as administrative agent for the lenders and the other
secured parties, together with the related documents thereto (including,
without limitation, 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.


 


“Non-U.S. Person” means a Person who is
not a U.S. Person.


 


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


 


“Notes” means, collectively, the Initial
Notes, and the Exchange Notes, if any, treated as a single class of securities,
as amended or supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture.


 


“Obligations” means, with respect to any
Indebtedness, any principal (including reimbursement obligations with respect
to letters of credit whether or not drawn), interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate provided
for in the documentation with respect thereto, whether or not such interest is
an allowed claim under applicable law), premium (if any), fees,
indemnifications, reimbursements, expenses and other liabilities payable under
the documentation governing such Indebtedness.


 


“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.


 


17





















 


“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.


 


“144A Global Note” means a global note in
the form of Exhibit A hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of, and registered in
the name of, the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Notes sold in
reliance on Rule 144A.


 


“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.


 


“Participant” means, with respect to the
Depositary, Euroclear or Clearstream, a Person who has an account with the
Depositary, Euroclear or Clearstream, respectively (and, with respect to the
DTC, shall include Euroclear and Clearstream).


 


“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 and/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.


 


“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 issued on the Issue Date and any Exchange Notes issued in
exchange thereof and Indebtedness consisting of the Guarantee of a Guarantor
with respect to such Notes or Exchange Notes;


 


(2)                                  Indebtedness
of the Company or any of its Restricted Subsidiaries incurred pursuant to one
or more Credit Facilities (other than Indebtedness incurred and outstanding
under the Bridge Facility or any Refinancing thereof); 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


 


18





















 


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 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 the first paragraph
of Section 4.09;


 


(3)                                  Indebtedness
of the Company and its Restricted Subsidiaries outstanding on the Issue Date including
Indebtedness outstanding under the Bridge Facility (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 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


 


19





















 


(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 in the
first paragraph 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;


 


(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;


 


20





















 


(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 in the first paragraph 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, without limitation, 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;


 


(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


 


21





















 


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) and clauses (3) through
(18) above or is permitted to be incurred pursuant to the proviso in the first
paragraph 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 such Section 4.09 and Section 4.12;
provided, however,
that all Indebtedness under the New 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).  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.


 


“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;


 


(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;


 


22





















 


(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 or Exchange 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 the following
types of Liens:


 


(1)                                  Liens
securing Senior Debt;


 


(2)                                  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;


 


(3)                                  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;


 


(4)                                  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);


 


23


















 


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


 


(6)                                  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;


 


(7)                                  Liens
securing Indebtedness permitted under the provisions described in clauses (7),
(15) and (16) of the definition of “Permitted Indebtedness”;


 


(8)                                  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;


 


(9)                                  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;


 


(10)                            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;


 


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


 


(12)                            Liens
securing Indebtedness under Hedging Agreements and Currency Agreements entered
into in the ordinary course of business and not for purposes of speculation;


 


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


 


(14)                            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;


 


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


 


(16)                            Liens
existing on the Issue Date, 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; 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)


 


24





















 


an amount necessary to pay interest, Required
Premiums and fees and expenses related to such Refinancing;


 


(17)                            Liens
securing the Notes and the Guarantees;


 


(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; and


 


(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.


 


For purposes of this definition, the term “Indebtedness” shall be
deemed to include interest on such Indebtedness.


 


“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 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


 


25





















 


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.


 


“Private Placement Legend” means the
legend set forth in Section 2.06(g)(i) 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.


 


“Purchasers” means DLJ Investment
Partners II, L.P., DLJ Investment Partners, L.P., DLJIP II Holdings, L.P.,
TCW/Crescent Mezzanine Partners III, L.P., TCW/Crescent Mezzanine Trust III, TCW/Crescent
Mezzanine Partners III Netherlands, L.P., KKR Financial Corp., New York Life
Investment Management Mezzanine Partners, LP and NYLIM Mezzanine Partners
Parallel Fund, LP.


 


“QIB” means a “qualified institutional
buyer” as defined in Rule 144A.


 


“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),


 


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, without limitation, 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


 


26





















 


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 the Issue Date.


 


“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
security or Indebtedness, to refinance, extend, renew, refund, repay, prepay,
redeem, defease or retire, or to issue a security or Indebtedness in exchange
or replacement for, such security or Indebtedness 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;


 


(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


 


27





















 


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”
has the meaning set forth in the Registration Rights Agreement.


 


“Registration Rights Agreement” means the
Registration Rights Agreement dated as of the Issue Date, among the Issuers, Neff
Rental and the Purchasers.


 


“Regulation S” means Regulation S
promulgated under the Securities Act.


 


“Regulation S Global Note” means a permanent
global Note in the form of Exhibit A hereto bearing the Global Note Legend
and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, that may be issued in
a denomination equal to the outstanding principal amount of Notes sold in
reliance on Regulation S.


 


“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 and/or such other Persons
referred to in the immediately preceding clause (a).


 


“Representative” means the indenture
trustee or other trustee, agent, designee or representative in respect of any
Designated Senior Debt; provided that if, and for so long as, any Designated
Senior Debt lacks such a representative, then the Representative for such
Designated Senior Debt shall at all times constitute the holders of a majority
in outstanding principal amount of such Designated Senior Debt in respect of
any Designated Senior 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.


 


28





















 


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


 


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


 


“Rule 903” means Rule 903
promulgated under the Securities Act.


 


“Rule 904” means Rule 904
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.


 


“SEC” means the Securities and Exchange
Commission.


 


“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


 


29





















 


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 filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law) on any Indebtedness of any Issuer 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 not be senior in right of
payment to the Notes or the Guarantee 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;


 


(ii)                                  any
Indebtedness to, or guaranteed on behalf of, any director, officer or employee
of the Company or any Subsidiary of the Company (including, without limitation,
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 any Issuer
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


 


30





















 


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 any Issuer or any Guarantor;
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.


 


“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 entered into on or prior to the Issue Date among Iron
Merger Partnership, Parent, New York Life Capital Partners II, L.P., the Purchasers
(other than KKR Financial Corp.), J.C. Mas
and JC Mas Holdings I, L.P. in connection with the Recapitalization.


 


“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:


 


(i)                                     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


 


31





















 


(ii)                                  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.


 


“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 the Issue Date,
including the related financings.


 


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


 


“Unrestricted Definitive Note” means one
or more Definitive Notes that do not bear and are not required to bear the
Private Placement Legend.


 


“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:


 


(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.


 


32





















 


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

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  	
   

  
	
  “Blockage Period”

  	
   

  	
  10.03

  	
   

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  	
   

  
	
  “Change of Control
  Payment Date”

  	
   

  	
  4.15

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  	
   

  
	
  “Default Notice”

  	
   

  	
  10.03

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Finance Corp. Surviving
  Entity”

  	
   

  	
  5.01

  	
   

  






 


33





















 




	
  Term

  	
   

  	
  Defined
  in

  Section

  
	
  “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

  	
   

  
	
  “Purchase Date”

  	
   

  	
  3.09

  	
   

  
	
  “Reference Date”

  	
   

  	
  4.07

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  	
   

  
	
  “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.


 


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;


 


34





















 


(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)            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 dated such date prepared in accordance with GAAP;


 


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


 


(9)           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.


 


(a)           General.  The Notes and the
Trustee’s certificate of authentication shall be substantially in the form of Exhibit A.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.  Each Note shall be dated the date of its
authentication.  The Notes shall be in minimum
denominations of $2,000 and any integral multiple of $1,000 thereafter.


 


The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture, and the Issuers, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.  However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling.


 


The Notes shall initially be issued in the form of Restricted
Definitive Notes.


 


(b)           Definitive Notes.  Definitive Notes issued on the Issue Date,
upon transfer of a Book-Entry Interest or a Definitive Note, or in exchange for
a Book-Entry Interest or a Definitive Note, shall be issued in accordance with
this Indenture, duly executed by the Issuers and authenticated by the Trustee
as hereinafter provided.  Definitive
Notes shall be substantially in the form of Exhibit A (but without the
Global Note Legend thereon and without the “Schedule of Exchanges of
Interests in the Global Note” attached thereto).  The Definitive Notes shall be typed, printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Notes may be listed, all as determined by the Officers
executing such Notes, as evidence by their execution of such Notes.


 


(c)           Global Notes.  Notes issued in global form shall be
substantially in the form of Exhibit A (including the Global Note Legend
thereon and the “Schedule of Exchanges of Interests in the Global Note”
attached thereto).  Each Global Note
shall represent such of the outstanding Notes as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and
redemptions.  Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the


 


35





















 


Trustee or the
Note Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06.


 


(d)           Euroclear and
Clearstream Procedures Applicable. 
The provisions of the “Operating Procedures of the Euroclear System” and
“Terms and Conditions Governing Use of Euroclear” and the “General Terms and
Conditions of Clearstream” and “Customer Handbook” of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Global
Notes that are held by Participants through Euroclear or Clearstream.


 


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.


 


The Trustee shall authenticate Notes for original issue in aggregate
principal amount not to exceed $80,000,000 (other than as provided in Section 2.07)
in one or more series upon a written order of the Issuers in the form of an
Officer’s Certificate.  To the extent any
notes issued on the Issue Date by Parent under the Existing Indenture are not
cancelled and reissued by the Issuers and authenticated by the Trustee (and
therefore remain outstanding) on or after the date of this Indenture, then such
notes shall be deemed Notes issued by the Issuers hereunder and shall be deemed
authenticated and amended in accordance with the terms hereof.  Each such written order shall specify the
amount of Notes to be authenticated, whether the Notes are to be Initial Notes
or Exchange Notes and whether the Notes are to be issued as Definitive Notes or
Global Notes or 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 and this Indenture 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


 


36





















 


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
Subsidiaries may act as Paying Agent or Registrar.


 


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


 


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


 


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 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 an 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.


 


(a)           Transfer and
Exchange of Global Notes.  A Global
Note may not be transferred as a whole except by the Depositary to a nominee of
the Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.  All Global Notes will be exchanged by the Issuers
for Definitive Notes if (i) the Issuers deliver to the Trustee notice from
the Depositary that it is unwilling or unable to continue to act as Depositary
or that it is no longer a clearing agency registered under the Exchange Act
and, in either case, a successor Depositary is not appointed by the Company within
90 days after the date of such notice from the Depositary or (ii) the Issuers
in their sole discretion determine that the Global Notes (in whole but not in
part) should be exchanged for Definitive Notes and delivers a written notice to
such effect to the Trustee.  Upon the
occurrence of either of the preceding events in (i) or (ii) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee.  Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10.  Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be
authenticated and delivered in the form of, and shall be, a Global Note.  A Global Note may not be exchanged for
another


 


37





















 


Note other
than as provided in this Section 2.06(a); however, beneficial interests in
a Global Note may be transferred and exchanged as provided in Section 2.06(b),
(c) or (f).


 


(b)           Transfer and
Exchange of Beneficial Interests in the Global Notes.  The transfer and exchange of beneficial
interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable
Procedures.  Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.  Transfers of beneficial interests in the
Global Notes also shall require compliance with either subparagraph (i) or
(ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:


 


(i)            Transfer of
Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend.  Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note.  No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in
this Section 2.06(b)(i).


 


(ii)           All Other Transfers
and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the Depositary
either (A) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant account
to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (1) above.  Upon consummation of a Registered Exchange
Offer by the Issuers in accordance with Section 2.06(f), the requirements
of this Section 2.06(b)(ii) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Notes.  Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section 2.06(h).


 


(iii)          Transfer of
Beneficial Interests to Another Restricted Global Note.  A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the form
of a beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:


 


(A)          if the transferee will
take delivery in the form of a beneficial interest in the 144A Global Note,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;


 


38





















 


(B)           if the transferee will
take delivery in the form of a beneficial interest in the Regulation S
Global Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and


 


(C)           if the transferee will
take delivery in the form of a beneficial interest in the IAI Global Note, then
the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates and Opinion of Counsel
required by item (3) thereof in form reasonably acceptable to the Issuers and
the Registrar, if applicable.


 


(iv)          Transfer and Exchange
of Beneficial Interests in a Restricted Global Note for Beneficial Interests in
an Unrestricted Global Note.  A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.06(b)(ii) above and:


 


(A)          such exchange or transfer
is effected pursuant to a Registered Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal or via the
Depositary’s book-entry system that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Issuers;


 


(B)           such transfer is
effected pursuant to a Demand Registration in accordance with the Registration
Rights Agreement; or


 


(C)           the Registrar receives
the following:


 


(1)           if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C, including
the certifications in item (1)(a) thereof; or


 


(2)           if the holder of such
beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B, including the certifications in
item (4) thereof;


 


and, in each such case set forth in this subparagraph (C),
if the Registrar or the Issuers so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the Registrar
and the Issuers to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


If any such transfer is effected pursuant to subparagraph (B) or
(C) above at a time when an Unrestricted Global Note has not yet been
issued, the Issuers shall issue and, upon receipt of a written authentication
order in accordance with Section 2.02, the Trustee shall authenticate one
or


 


39





















 


more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subparagraph (B) or (C) above.


 


Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.


 


(c)           Transfer or Exchange
of Beneficial Interests for Definitive Notes.


 


(i)            Beneficial
Interests in Restricted Global Notes to Restricted Definitive Notes.  If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:


 


(A)          if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note, a certificate from such
holder in the form of Exhibit C, including the certifications in
item (2)(a) thereof;


 


(B)           if such beneficial
interest is being transferred to a QIB in accordance with Rule 144A under
the Securities Act, a certificate to the effect set forth in Exhibit B,
including the certifications in item (1) thereof;


 


(C)           if such beneficial
interest is being transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B, including the
certifications in item (2) thereof;


 


(D)          if such beneficial
interest is being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit B,
including the certifications in item (3)(a) thereof;


 


(E)           if such beneficial
interest is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof
in form reasonably acceptable to the Issuers and the Registrar, if applicable;


 


(F)           if such beneficial
interest is being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B, including the
certifications in item (3)(b) thereof; or


 


(G)           if such beneficial
interest is being transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth in Exhibit B,
including the certifications in item (3)(c) thereof,


 


the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h), and the Issuers shall execute and the Trustee
shall


 


40





















 


authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal
amount.  Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. 
The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered.  Any
Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c)(i) shall bear the
Private Placement Legend and shall be subject to all restrictions on transfer
contained therein.


 


(ii)           Beneficial Interests
in Restricted Global Notes to Unrestricted Definitive Notes.  A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note only if:


 


(A)          such exchange or
transfer is effected pursuant to a Registered Exchange Offer in accordance with
the Registration Rights Agreement and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Issuers;


 


(B)           such transfer is
effected pursuant to a Demand Shelf Registration in accordance with the
Registration Rights Agreement; or


 


(C)           the Registrar receives
the following:


 


(1)           if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form of Exhibit C,
including the certifications in item (1)(b) thereof; or


 


(2)           if the holder of such
beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of
a Definitive Note that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit B, including
the certifications in item (4) thereof;


 


and, in each such case set forth in this
subparagraph (C), if the Registrar or the Issuers so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar and the Issuers to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


(iii)          Beneficial Interests
in Unrestricted Global Notes to Unrestricted Definitive Notes.  If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(ii), the Trustee shall cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h), and the Issuers


 


41





















 


shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount.  Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant.  The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Definitive Note issued
in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall
not bear the Private Placement Legend.


 


(d)           Transfer and
Exchange of Definitive Notes for Beneficial Interests.


 


(i)            Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes.  If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:


 


(A)          if the Holder of such
Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note, a certificate from such Holder in the
form of Exhibit C, including the certifications in item (2)(b) thereof;


 


(B)           if such Restricted
Definitive Note is being transferred to a QIB in accordance with Rule 144A
under the Securities Act, a certificate to the effect set forth in Exhibit B,
including the certifications in item (1) thereof;


 


(C)           if such Restricted
Definitive Note is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit B,
including the certifications in item (2) thereof;


 


(D)          if such Restricted Definitive
Note is being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit B,
including the certifications in item (3)(a) thereof;


 


(E)           if such Restricted
Definitive Note is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;


 


(F)           if such Restricted
Definitive Note is being transferred to the Company or any of its Subsidiaries,
a certificate the effect set forth in Exhibit B, including the
certifications in item (3)(b) thereof; or


 


(G)           if such Restricted
Definitive Note is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the effect set forth in Exhibit B,
including the certifications in item (3)(c) thereof,


 


the Trustee shall cancel the Restricted
Definitive Note, increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global


 


42





















 


Note, in the case of clause (B) above,
the 144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI Global Note.


 


(ii)           Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if:


 


(A)          such exchange or transfer
is effected pursuant to a Registered Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Issuers;


 


(B)           such transfer is
effected pursuant to a Demand Registration in accordance with the Registration
Rights Agreement; or


 


(C)           the Registrar receives
the following:


 


(1)           if the Holder of such
Definitive Notes proposes to exchange such Notes for a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C,
including the certifications in item (1)(c) thereof; or


 


(2)           if the Holder of such
Definitive Notes proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit B,
including the certifications in item (4) thereof;


 


and, in each such case set forth in this
subparagraph (C), if the Registrar or the Issuers so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar and the Issuers to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.


 


Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.


 


(iii)          Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time.  Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive
Note and increase or cause to be increased the aggregate principal amount of
one of the Unrestricted Global Notes.


 


If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(C) or (iii) above
at a time when an Unrestricted Global


 


43





















 


Note has not yet been issued, the Issuers
shall issue and, upon receipt of a written authentication order in accordance
with Section 2.02, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.


 


(e)           Transfer and
Exchange of Definitive Notes for Definitive Notes.  Upon request by a Holder of Definitive Notes
and such Holder’s compliance with the provisions of this Section 2.06(e),
the Registrar shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. 
In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).


 


(i)            Restricted
Definitive Notes to Restricted Definitive Notes.  Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof
in the form of a Restricted Definitive Note if the Registrar receives the
following:


 


(A)          if the transfer will be
made pursuant to Rule 144A under the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B, including the
certifications in item (1) thereof;


 


(B)           if the transfer will be
made pursuant to Rule 903 or Rule 904, then the transferor must
deliver a certificate in the form of Exhibit B, including the
certifications in item (2) thereof; and


 


(C)           if the transfer will be
made pursuant to any other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate in the form of Exhibit B,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof in form reasonably acceptable to the Issuers and the
Registrar, if applicable.


 


(ii)           Restricted
Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be exchanged
by the Holder thereof for an Unrestricted Definitive Note or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:


 


(A)          such exchange or
transfer is effected pursuant to a Registered Exchange Offer in accordance with
the Registration Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Issuers;


 


(B)           any such transfer is
effected pursuant to a Demand Registration in accordance with the Registration
Rights Agreement; or


 


(C)           the Registrar receives
the following:


 


(1)           if the Holder of such
Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such


 


44





















 


Holder in the form of Exhibit C, including the
certifications in item (1)(d) thereof; or


 


(2)           if the Holder of such
Restricted Definitive Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit B, including the certifications
in item (4) thereof;


 


and, in each such case set forth in this
subparagraph (C), if the Registrar or the Issuers so requests, an Opinion
of Counsel in form reasonably acceptable to the Issuers and the Registrar to
the effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the Securities Act.


 


(iii)          Unrestricted
Definitive Notes to Unrestricted Definitive Notes.  A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note.  Upon
receipt of a request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.


 


(f)            Exchange Offer.  Upon the occurrence of a Registered Exchange
Offer in accordance with the Registration Rights Agreement, the Issuers shall
issue and, upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate (i) one or more Unrestricted Global Notes
in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that
(x) they are not broker-dealers, (y) they are not participating in a distribution
of the Exchange Notes and (z) they are not affiliates (as defined in Rule 144)
of the Issuers, and accepted for exchange in such Registered Exchange Offer and
(ii) Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in
such Registered Exchange Offer. 
Concurrently with the issuance of such Notes, the Trustee shall cause
the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Issuers shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate principal amounts.


 


(g)           Legends.  The following
legends shall appear on the face of all Global Notes and Definitive Notes
issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.


 


(i)            Private Placement
Legend.


 


(A)          Except as permitted by
subparagraph (B) below, each Global Note and each Definitive Note
(and all Notes issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:


 


THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN
RULE 144A


 


45





















 


UNDER THE SECURITIES ACT) OR (B) IT IS
AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL
ACCREDITED INVESTOR”) OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE
DATE OF TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $250,000,
AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUERS THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.  IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE.  IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR A NON U.S. PERSON THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUERS SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.  AS USED HEREIN, THE
TERMS “OFFSHORE TRANSACTION”, “UNITED STATES” AND “U.S. PERSON” HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.  THE INDENTURE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.


 


(B)           Notwithstanding the
foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)


 


46





















 


of this Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.


 


(ii)           Global Note Legend.  Each Global Note shall bear a legend in
substantially the following form:


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE ISSUERS.”


 


(h)           Cancellation and/or
Adjustment of Global Notes.  At such
time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall
be returned to or retained and canceled by the Trustee in accordance with Section 2.11.  At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount at maturity
of Notes represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note, such other
Global Note shall be increased accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such increase.


 


(i)            General Provisions
Relating to Transfers and Exchanges.


 


(i)            To permit
registrations of transfers and exchanges, the Issuers shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon the Issuers’ order
or at the Registrar’s request.


 


(ii)           No service charge shall
be made to a holder of a beneficial interest in a Global Note or to a Holder of
a Definitive Note for any registration of transfer or exchange, but the Issuers
may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05).


 


(iii)          The Registrar shall not
be required (A) to register the transfer of or to exchange any Notes
during a period beginning at the opening of business 15 days before the day of
the mailing of notice of redemption under Section 3.03 and ending at the close
of business on such day, or (B) to register the transfer of or exchange
any Note selected for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.


 


47





















 


(iv)          All Global Notes and
Definitive Notes issued upon any registration of transfer or exchange of Global
Notes or Definitive Notes shall be the valid obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.


 


(v)           The Issuers shall not
be required (A) to issue, to register the transfer of or to exchange any
Notes during a period beginning at the opening of business 15 days before the
day of the mailing of notice of redemption under Section 3.03 and ending
at the close of business on such day, or (B) to register the transfer of
or to exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.


 


(vi)          Prior to due presentment
for the registration of a transfer of any Note, the Trustee, any Agent and the Issuers
may deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of principal
of and interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Issuers shall be affected by notice to the contrary.


 


(vii)         The Trustee shall
authenticate Global Notes and Definitive Notes in accordance with the
provisions of Section 2.02.


 


(viii)        All certifications,
certificates and Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.


 


SECTION 2.07.                                              Replacement
Notes.


 


If (x) 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 or (y) any note issued under the Existing Indenture is
surrendered to the Trustee or the Issuers, the Issuers shall issue and the
Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if 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 their 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 any of the Issuers or an
Affiliate of any 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.


 


48





















 


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 Company,
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company, 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.


 


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 they have paid or that have been delivered to the Trustee for
cancellation.


 


SECTION 2.12.                                              Defaulted
Interest.


 


If the Issuers default in a payment of interest on the Notes, they shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01.  The Company
shall notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each Note and the date of the proposed payment.  The Company shall fix or cause to be fixed
each such special record date and payment date, provided
that no such special record date shall be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the
special record date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) shall mail or cause
to be mailed to Holders a notice that states the special record date, the
related payment date and the amount of such interest to be paid.


 


49





















 


SECTION 2.13.                                              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 Issuers will promptly notify the Trustee of any change in the CUSIP
numbers.


 


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;


 


50





















 


(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;


 


(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 and/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 unless the payment thereof is
prohibited by the provisions of Article 10.  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


 


51





















 


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.


 


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
2007, the Notes shall be subject to redemption at any time at the option of the
Company, 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 thereon to the
applicable redemption date, if redeemed during the twelve-month period
commencing on June 15 of the years set forth below:


 


	
  Year

  	
   

  	
  Percentage

  of Principal

  Amount

  	
   

  
	
  2007

  	
   

  	
  103.00

  	
  %

  
	
  2008

  	
   

  	
  102.00

  	
  %

  
	
  2009

  	
   

  	
  101.00

  	
  %

  
	
  2010 and
  thereafter

  	
   

  	
  100.00

  	
  %

  



 


(b)           Prior to June 15,
2007, the Issuers may on any one or more occasions redeem up to 35% of the
principal amount of Initial Notes issued under this Indenture at a redemption
price of 113.00% of the principal amount thereof, plus accrued and unpaid
interest 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)           In addition,  prior to June 15, 2007, 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 plus the
Applicable Premium as of, and accrued and unpaid 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.


 


52


















 


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.


 


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 the Net Proceeds Offer Amount of Notes and pari passu Indebtedness except as provided in Section 3.02
or, if Notes and pari passu Indebtedness in an
aggregate principal amount less than the Net Proceeds Offer Amount have been
tendered, all Notes and, if required by Section 4.10, pari passu
Indebtedness validly tendered in response to the Net Proceeds Offer 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.  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


 


53





















 


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;


 


(h)           that,
if the aggregate principal amount of Notes surrendered by Holders and the aggregate
principal amount of pari passu Indebtedness
tendered exceeds the Net Proceeds Offer Amount, the Issuers shall select the
Notes and such pari passu Indebtedness to be
purchased on a pro rata basis (based on amounts
tendered 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.


 


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 Issuers 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.


 


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 on the Notes on the dates and
in the manner provided in the Notes and this Indenture.  Principal amount, premium, if any, and
interest 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 any, and interest then due unless the provisions of Article 10 hereof
prohibit such payment.


 


The Issuers, jointly and severally, shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal
at the rate equal to 1% per annum in excess of the then applicable interest
rate on the Notes to the extent lawful; the Issuers, jointly and severally, shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on


 


54





















 


overdue installments of interest (without
regard to any applicable grace period) at the same rate to the extent lawful.


 


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 Issuers shall furnish to the Holders of
Notes:


 


(1)           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


 


(2)           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 Issuers 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 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.


 


55





















 


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 a Registration Statement (as defined in the Registration
Rights Agreement) or the consummation of a Registered Exchange Offer, whichever
occurs first, shall be limited in scope to the type of disclosure set forth in
the offering circular of the Issuers dated June 30, 2005 used in
connection with the issuance of the Issuers’ second priority senior secured
notes due 2012 (which, for the avoidance of doubt, excludes all historical
financial statements and pro forma financial information related to the
acquisition opportunity disclosed in such 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 time the Issuers are subject to
Section 13(a) or 15(d) of the Exchange Act; and


 


(4)           in the event that Parent
or any direct or indirect parent company of the Company is or becomes a
Guarantor of the Notes, this Indenture will permit the Issuers to satisfy their
obligations under this Section 4.03 with respect to financial information
relating to the Issuers by furnishing financial information relating to Parent
or such other direct or indirect parent company; 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 effectiveness of a Registration Statement
(as defined in the Registration Rights Agreement) or the consummation of a
Registered Exchange Offer, whichever occurs first, 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.  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.


 


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 each such 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 propose to take with respect thereto) and that
to the


 


56





















 


best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Issuers are taking or propose 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, (i) all material taxes, assessments and governmental
levies levied or imposed upon (a) the Company or any such Subsidiary, (b) the
income or profits of any such Subsidiary which is a corporation or (c) the
property of the Company or any such Subsidiary and (ii) 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.


 


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);


 


57





















 


(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 in the first paragraph 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


 


(w)           100%
of the aggregate net proceeds (including the fair market value of property or
assets other than cash that would constitute Marketable Securities or a
Permitted Business) 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


 


58





















 


(y)           100%
of the aggregate net proceeds (including the fair market value of property or
assets other than cash that would constitute Marketable Securities or a
Permitted Business) 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;


 


(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 in the first
paragraph of Section 4.09;


 


59





















 


(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 of 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 (1) 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 (2) 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 is in effect on the Issue Date,
to the extent such payments or transactions are made or consummated on the Issue
Date or otherwise in connection with the Recapitalization pursuant to the
Recapitalization Agreement (including related financings) and (B) the
declaration and payment of dividends with the proceeds of Indebtedness incurred
by the Issuers or a Guarantor to Refinance Indebtedness outstanding under the
Bridge Facility and to pay related expenses;


 


(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:


 


60





















 


(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 clauses (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), (A) amounts expended pursuant
to clauses (1), (10) and (13) of Section 4.07(b) shall be included
in such calculation and (B) 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:


 


(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


 


61





















 


(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 (including
the Exchange 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 New Credit Facility and the Bridge Facility;


 


(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 New Credit Facility and the Bridge 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 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;


 


62





















 


(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) of the preceding paragraph;


 


(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 Restricted Subsidiary of the Company may incur Indebtedness (including,
without limitation, 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.


 


The Company will not, and will not permit any of its Restricted
Subsidiaries to, amend, restate, supplement or modify the Bridge Facility or
Refinance Indebtedness under the Bridge Facility (including by conversion or
exchange of Indebtedness thereunder) unless, after giving effect to such
amendment, restatement, supplement, modification or Refinancing, the Bridge Facility
or any Indebtedness Refinancing the Bridge Facility, as the case may be,
contains no financial maintenance covenants and has no scheduled amortization (other
than scheduled amortization payments not to exceed 1% amortization per year of
the aggregate principal amount of such Indebtedness) on or prior to the
maturity date of such Indebtedness.


 


63





















 


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 and/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 (A) 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 (B) with
respect to any Designated Noncash Consideration in excess of $15.0 million, the
Board of Directors of the Company’s determination 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 Senior Debt of any Issuer 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 Senior 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


 


64





















 


(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 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).


 


65





















 


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.  Upon
receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes
in whole or in part in integral multiples of $1,000 in exchange for cash.  To the extent Holders properly tender Notes
in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering Holders
will be purchased on a pro rata basis (based on amounts tendered) together with
the Holders of any other pari passu
Indebtedness subject to such Net Proceeds Offer.  A Net Proceeds Offer shall remain open for a
period of 20 business days or such longer period as may be required by
law.  To the extent that the aggregate
amount of Notes 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, without limitation, 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:


 


(1)           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


 


66





















 


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)           (x) reasonable fees and
compensation paid to, and indemnity provided on behalf of, officers, directors,
employees or consultants 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 or (y) reasonable indemnity provided on behalf
of officers, directors, employees or consultants of Parent or any other direct
or indirect parent of the Company (other than Iron Merger Partnership or any
direct or indirect parent company of Iron Merger Partnership) 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, without limitation,
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


 


67





















 


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;


 


(11)         (A) any payments or
transactions provided for or contemplated by the Recapitalization Agreement
(including the related financings), as the same is in effect on the Issue Date,
to the extent such payments or transactions are 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) any
declaration and payment of dividends with the proceeds of Indebtedness incurred
by the Issuers or a Guarantor to Refinance Indebtedness outstanding under the
Bridge Facility and to pay related expenses;


 


(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


 


68





















 


any of its Restricted Subsidiaries whether
owned on the Issue Date or acquired after the Issue Date, in each case to
secure Indebtedness, unless:


 


(1)           in the case of Liens
securing Indebtedness that is expressly subordinate or junior in right of
payment to the Notes, the Notes are secured by a Lien on such property, assets
or proceeds that is senior in priority to such Liens; and


 


(2)           in all other cases, the
Notes are equally and ratably secured.


 


Any Lien created for the benefit of the Holders of the Notes pursuant
to the preceding sentence shall provide by its terms that such Lien shall be
automatically and unconditionally released and discharged upon the release and
discharge of the initial Lien.


 


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 and other Indebtedness permitted to be incurred by
Finance Corp. under Section 4.09 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 interest 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


 


69





















 


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);


 


(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.


 


Prior to the mailing of the notice referred to in Section 4.15(a) above,
but in any event within 30 days following any Change of Control, the Issuers
covenant to:  (i) repay in full and
terminate all commitments under all Indebtedness under the New Credit Facility
and all other Senior Debt the terms


 


70





















 


of which require repayment upon a Change of
Control; or (ii) obtain the requisite consents under the New Credit
Facility and all other such Senior Debt to permit the repurchase of the Notes
as provided below.  The Issuers’ failure
to comply with the covenant described in the immediately preceding sentence
shall constitute an Event of Default described in clause (c) and not in
clause (b) under Section 6.01.


 


(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.


 


SECTION 4.16.                                              No
Senior Subordinated Debt.


 


The Issuers shall not, and shall not permit any Guarantor to, incur or
suffer to exist any Indebtedness that is senior in right of payment to the Notes
or such Guarantor’s Guarantee, as the case may be, and subordinate in right of
payment to any other Indebtedness of the Company or such Guarantor, as the case
may be.  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.


 


SECTION 4.17.                                              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 11.06.


 


SECTION 4.18.                                              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
without equally and ratably securing the Notes pursuant


 


71





















 


to Section 4.12; (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.


 


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 entity; 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 or 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 the proviso in the first
paragraph of Section 4.09 or (B) if such transaction occurs prior to June 3,
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


 


72





















 


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,
without limitation, 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 the
proviso in the first paragraph of Section 4.09 or (B) if such
transaction occurs prior to June 3, 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;


 


73





















 


(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 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


 


(c)           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.


 


(d)           For purposes of 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.


 


(e)           Notwithstanding the
foregoing, the merger of Iron Merger Sub with and into the Company on the Issue
Date (with the Company being the surviving entity) need only comply with clause
(4) above.


 


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 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; provided that neither
the Company nor Finance Corp. shall not be released from its obligation to pay
the principal of, premium, if any, or 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 (whether or not such payment
shall be prohibited by Article 10);


 


74





















 


(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 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) (whether or not such payment shall be prohibited
by Article 10);


 


(c)           the
failure of any Issuer to comply with its 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 Significant Subsidiary of the Company 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


 


75





















 


(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; or


 


(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).


 


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 (i) shall become
immediately due and payable or (ii) if there are any amounts outstanding
under any Designated Senior Debt, shall become immediately due and payable upon
the first to occur of an acceleration under such Designated Senior Debt or five
Business Days after receipt by the Company and the Representatives under such
Designated Senior Debt of such Acceleration Notice but only if such Event of
Default is then continuing.  If 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, 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 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 may and at
the direction of the Holders of at least a majority in principal amount of the
outstanding Notes shall, pursue any available remedy to collect the payment of
principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.


 


76





















 


The Trustee 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 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.  Every right and remedy given by this Article 6
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient by the Trustee 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 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.


 


SECTION 6.06.                                              Limitation
on Suits.


 


A Holder of a Note may pursue a remedy 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


 


77


















 


(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 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 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 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:


 


78





















 


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 the holders of Senior Debt, to the extent required by Article 10;


 


Third: 
to Holders of Notes for amounts due and unpaid on the Notes for
principal amount, premium 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 interest, respectively; and


 


Fourth: 
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.


 


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.


 


79





















 


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, 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


 


80





















 


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 or the Notes, 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 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)(2).  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 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


 


81





















 


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
Company 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 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


 


82





















 


(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’ obligation 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.


 


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.


 


83





















 


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.


 


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 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,


 


84





















 


(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 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 or an Event of 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 its Covenant
Defeasance option, each Guarantor, if any, shall be released from all Obligations
with respect to its Guarantee.


 


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:


 


(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 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


 


85





















 


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.


 


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


 


86





















 


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


 


(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 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


 


87





















 


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:


 


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


 


(2)           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);


 


(3)           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;


 


(4)           to secure the Notes;


 


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


 


88





















 


(6)           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 an Issuer or any Guarantor;


 


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


 


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


 


(9)           to evidence and provide
for the acceptance of appointment under this Indenture of a successor Trustee;
or


 


(10)         to make any amendment to
the provisions of this Indenture relating to the transfer and legending of Notes;
provided, however,
that (a) 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 (b) such amendment does not materially and
adversely affect the rights of Holders to transfer 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.


 


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.


 


89





















 


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 or the Notes.  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;


 


(c)           reduce
the principal of or change or have the effect of changing the fixed maturity of
any Notes, or change the date on which any Notes may be subject to redemption
or reduce the redemption price therefor;


 


(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 or Event of Default;


 


(f)            after
the 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 subordination or ranking of the Notes or any Guarantee in a manner which
adversely affects the Holders;


 


(h)           make
any change in the foregoing amendment and waiver provisions (except to increase
any percentage set forth therein); or


 


(i)            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.


 


90





















 


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 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.  The Issuers may not 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.


 


91





















 


ARTICLE 10


 


SUBORDINATION


 


SECTION 10.01.                                        Agreement to
Subordinate.


 


The Issuers, jointly and severally, covenant and agree, and each Holder
of the Notes, by its acceptance thereof, likewise covenants and agrees, (i) that
all Notes shall be issued subject to the provisions of this Article 10,
and each Person holding any Note, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that the payment of all
Obligations on the Notes by the Issuers shall, to the extent and in the manner
herein set forth, be subordinated and junior in right of payment to the prior
payment in full in cash and/or Cash Equivalents of all Obligations on Senior
Debt, including, without limitation, the Issuers’ obligations under the New
Credit Facility and (ii) that the subordination is for the benefit of, and
shall be enforceable directly by, the holders of Senior Debt, and that each
holder of Senior Debt whether now outstanding or hereafter created, incurred,
assumed or guaranteed shall be deemed to have acquired Senior Debt in reliance
upon the covenants and provisions contained in this Indenture and the Notes.


 


SECTION 10.02.                                        Liquidation;
Dissolution; Bankruptcy.


 


(a)           Upon any payment or distribution
of assets of an Issuer of any kind or character, whether in cash, property or
securities, to creditors upon any total or partial liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors or
marshaling of assets of an Issuer or in a bankruptcy, reorganization,
insolvency, receivership or other similar proceeding relating to such Issuer or
its property, whether voluntary or involuntary, all Obligations (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) due or to become due
upon all Senior Debt of such Issuer shall first be paid in full in cash and/or
Cash Equivalents, or such payment duly provided for to the satisfaction of the
holders of such Senior Debt, before any payment or distribution of any kind or
character is made on account of any Obligations on the Notes, or for the
acquisition of any of the Notes for cash or property or otherwise.  Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar proceeding, any payment or
distribution of assets of an Issuer of any kind or character, whether in cash,
property or securities, to which the Holders of the Notes or the Trustee under
this Indenture would be entitled, except for the provisions hereof, shall be
paid by such Issuer or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders or by the Trustee under this Indenture if received by them, directly to
the holders of Senior Debt of such Issuer (pro rata to
such holders on the basis of the respective amounts of Senior Debt held by such
holders) or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, for application to the
payment of Senior Debt remaining unpaid until all such Senior Debt has been
paid in full in cash and/or Cash Equivalents after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
Senior Debt.


 


(b)           To the extent any
payment of Senior Debt (whether by or on behalf of the Issuers, as proceeds of
security or enforcement of any right of setoff or otherwise) is declared to be
fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under
any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the Senior
Debt or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment has not occurred.


 


92





















 


(c)           In the event that,
notwithstanding the foregoing, any payment or distribution of assets of an Issuer
of any kind or character, whether in cash, property or securities, shall be
received by the Trustee or any Holder when such payment or distribution is
prohibited by Section 10.02(a), such payment or distribution shall be held
in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Debt of such Issuer (pro rata to
such holders on the basis of the respective amount of Senior Debt held by such
holders) or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, for application to the
payment of Senior Debt remaining unpaid until all such Senior Debt has been
paid in full in cash and/or Cash Equivalents, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Senior Debt.


 


(d)           The consolidation of an
Issuer with, or the merger of an Issuer with or into, another corporation or
the liquidation or dissolution of an Issuer following the conveyance or
transfer of all or substantially all of its assets, to another corporation upon
the terms and conditions provided in Article Five hereof and as long as
permitted under the terms of the Senior Debt of such Issuer shall not be deemed
a dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 10.02 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, assume such Issuer’s obligations
hereunder in accordance with Article 5.


 


SECTION 10.03.                                        Default on
Designated Senior Debt.


 


(a)           If any default occurs
and is continuing in the payment when due, whether at maturity, upon any
redemption, by declaration or otherwise, of any principal of, interest on,
unpaid drawings for letters of credit issued in respect of, or regularly
accruing fees with respect to, any Designated Senior Debt of an Issuer, no
payment of any kind or character shall be made by or on behalf of such Issuer or
any other Person on its or their behalf with respect to any Obligations on the
Notes or to acquire any of the Notes for cash or property or otherwise.  In addition, if any other event of default
occurs and is continuing with respect to any Designated Senior Debt, as such
event of default is defined in the instrument creating or evidencing such
Designated Senior Debt, permitting the holders of such Designated Senior Debt
then outstanding to accelerate the maturity thereof and if the Representative
for the respective issue of Designated Senior Debt gives notice of the event of
default to the Trustee (a “Default Notice”),
then, unless and until (i) all events of default have been cured or waived
or have ceased to exist (so long as no other Event of Default exists), (ii) the
Trustee receives notice thereof from the Representative for the respective issue
of Designated Senior Debt terminating the Blockage Period (as defined below)
(unless the maturity of such Designated Senior Debt has been accelerated) or (iii) all
such Designated Senior Debt has been paid in full in cash and/or Cash
Equivalents and the commitments thereunder have been terminated, during the 180
days after the delivery of such Default Notice (the “Blockage Period”),
neither the Issuers nor any other Person on their behalf shall (x) make any
payment of any kind or character with respect to any Obligations on the Notes
or (y) acquire any of the Notes for cash or property or otherwise.  Notwithstanding anything to the contrary in
the immediately preceding sentence, in no event will a Blockage Period extend
beyond 180 days from the date the payment on the Notes was due and only one
such Blockage Period may be commenced within any 360 consecutive days.  No event of default which existed or was
continuing on the date of the commencement of any Blockage Period with respect
to the Designated Senior Debt shall be, or be made, the basis for commencement
of a second Blockage Period by the Representative of such Designated Senior
Debt whether or not within a period of 360 consecutive days, unless such event
of default shall have been cured or waived for a period of not less than 90
consecutive days (it being acknowledged that any subsequent action, or any breach
of any financial covenants for a period commencing after the date of
commencement of such Blockage Period that, in either case, would give rise to
an event of default pursuant to any provisions under which an event of default previously
existed or was continuing shall constitute a new event of default for this
purpose).


 


93





















 


(b)           In the event that,
notwithstanding the foregoing, any payment shall be received by the Trustee or
any Holder when such payment is prohibited by Section 10.03(a), such
payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Debt (pro rata to
such holders on the basis of the respective amount of Senior Debt held by such
holders) or their respective Representatives, as their respective interests may
appear.  The Trustee shall be entitled to
rely on information regarding amounts then due and owing on the Senior Debt, if
any, received from the holders of Senior Debt (or their Representatives) or, if
such information is not received from such holders or their Representatives,
from the Company and only amounts included in the information provided to the
Trustee shall be paid to the holders of Senior Debt.


 


Nothing contained in this Article 10 shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity
of the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; provided that all Senior Debt thereafter due or declared to be due
shall first be paid in full in cash or Cash Equivalents before the Holders are
entitled to receive any payment of any kind or character with respect to Obligations
on the Notes.


 


SECTION 10.04.                                        Acceleration
of Notes.


 


If payment of the Notes is accelerated because of an Event of Default,
the Issuers shall promptly notify holders of Senior Debt of the acceleration.


 


SECTION 10.05.                                        When
Distribution Must Be Paid Over.


 


In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes at a time when such payment is prohibited
by Section 10.02 or 10.03, such payment shall be held by the Trustee or
such Holder, in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to, the holders of Senior Debt as their
interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which such Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in cash or Cash Equivalents in accordance with
their terms, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt.


 


With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture against
the Trustee.  The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt, and shall not
be liable to any such holders if the Trustee shall pay over or distribute to or
on behalf of Holders or the Issuers or any other Person money or assets to
which any holders of Senior Debt shall be entitled by virtue of this Article 10,
except if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.


 


SECTION 10.06.                                        Notice by
Issuers.


 


The Issuers shall give prompt written notice to the Trustee of any fact
known to them which would prohibit the making of any payment to or by the
Trustee in respect of the Notes pursuant to the provisions of this Article 10
(although the failure to give any such notice shall not affect the
subordination provision of this Article 10).  Regardless of anything to the contrary
contained in this Article 10 or elsewhere in this Indenture, the Trustee
shall not be charged with knowledge of the existence of any default or event of
default with respect to any Senior Debt or of any other facts which would
prohibit the making of any payment to or by the Trustee unless and until the
Trustee shall have received notice in


 


94





















 


writing from the Issuers, or from a holder of
Senior Debt or a Representative therefor, together with proof satisfactory to
the Trustee of such holding of Senior Debt or of the authority of such
Representative, and, prior to the receipt of any such written notice, the Trustee
shall be entitled to assume (in the absence of actual knowledge to the
contrary) that no such facts exist.


 


SECTION 10.07.                                        Subrogation.


 


(a)           Subject to the payment
in full in cash and/or Cash Equivalents of all Senior Debt, the Holders of the
Notes shall be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities of the
Issuers applicable to the Senior Debt until the Notes shall be paid in full;
and, for the purposes of such subrogation, no such payments or distributions to
the holders of the Senior Debt by or on behalf of the Issuers or by or on
behalf of the Holders by virtue of this Article 10 which otherwise would
have been made to the Holders shall, as between the Issuers and the Holders of
the Notes, be deemed to be a payment by the Issuers to or on account of the
Senior Debt, it being understood that the provisions of this Article 10
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Notes, on the one hand, and the holders of the Senior Debt,
on the other hand.


 


(b)           If any payment or
distribution to which the Holders would otherwise have been entitled but for the
provisions of this Article 10 shall have been applied, pursuant to the
provisions of this Article 10, to the payment of all amounts payable under
Senior Debt, then in such case, the Holders shall be entitled to receive from
the holders of such Senior Debt any payments or distributions received by such
holders of Senior Debt in excess of the amount required to make payment in
full, in cash or cash equivalent, of such Senior Debt of such holders.


 


SECTION 10.08.                                        Relative
Rights.


 


Nothing contained in this Article 10 or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as between the Issuers
and the Holders, the obligation of the Issuers, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the Notes
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders and
creditors of the Issuers other than the holders of the Senior Debt, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 10 of the
holders of Senior Debt in respect of cash, property or securities of the Issuers
received upon the exercise of any such remedy. 
Upon any payment or distribution of assets or securities of the Issuers
referred to in this Article 10, the Trustee, subject to the provisions of
Sections 7.01 and 7.02, and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any
liquidation, dissolution, winding-up or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee or
agent or other Person making any payment or distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Debt and other Indebtedness
of the Issuers, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this Article 10.  Nothing in this Article 10 shall apply
to the claims of, or payments to, the Trustee in its capacity as such under or
pursuant to Section 7.07.  The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Debt (or a trustee
on behalf of, or other representative of, such holder) to establish that such
notice has been given by a holder of such Senior Debt or a trustee or
representative on behalf of any such holder.


 


In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution


 


95





















 


pursuant to this Article 10, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article 10,
and if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.


 


SECTION 10.09.                                        Subordination
May Not Be Impaired by Issuers.


 


(a)           No right of any present
or future holder of any Senior Debt to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Issuers or by any act or failure to act by any such
holder, or by any non-compliance by the Issuers with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.


 


(b)           Without limiting the
generality of subsection (a) of this Section 10.09, the holders
of Senior Debt may, at any time and from time to time, without the consent of
or notice to the Trustee or the Holders of the Notes, without incurring
responsibility to the Holders of the Notes and without impairing or releasing
the subordination provided in this Article 10 or the obligations hereunder
of the Holders of the Notes to the holders of Senior Debt, do any one or more
of the following:  (1) change the manner,
place, terms or time of payment of, or renew or alter, Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (2) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (3) release
any Person liable in any manner for the collection or payment of Senior Debt;
and (4) exercise or refrain from exercising any rights against the Issuers
and any other Person.


 


SECTION 10.10.                                        Distribution
or Notice to Representative.


 


Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.


 


Upon any payment or distribution of assets of an Issuer referred to in
this Article 10, the Trustee and the Holders of Notes shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
of Notes for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Debt and other Indebtedness of
such Issuer, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article 10.


 


SECTION 10.11.                                        Rights of
Trustee and Paying Agent.


 


Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least two Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article 10 (although the receipt
of such payment shall otherwise be subject to the applicable provisions of this
Article 10).  Only the Issuers or a
Representative may give the notice. 
Nothing in this Article 10 shall impair the claims of, or payments
to, the Trustee in its capacity as such under or pursuant to Section 7.07.  Nothing in this Section 10.11 is


 


96





















 


intended to or shall relieve any Holder of
Notes from the obligations imposed under Section 10.05 with respect to
other distributions received in violation of the provisions hereof.


 


The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee.  Any Agent may do the same with like rights.


 


SECTION 10.12.                                        Authorization
to Effect Subordination.


 


Each Holder of the Notes by such Holder’s acceptance thereof authorizes
and expressly directs the Trustee on such Holder’s behalf to take such action
as may be necessary or appropriate to effect the subordination provisions
contained in this Article 10, and appoints the Trustee such Holder’s
attorney-in-fact for such purpose, including, in the event of any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors or marshaling of assets of the Issuers tending towards liquidation or
reorganization of the business and assets of the Issuers, the immediate filing
of a claim for the unpaid balance of such Holder’s Notes in the form required
in said proceedings and cause said claim to be approved.  If the Trustee does not file a proper claim
or proof of debt in the form required in any proceeding referred to in Section 6.09
prior to 30 days before the expiration of the time to file such claim or
claims, then any of the holders of the Senior Debt or their Representative is
hereby authorized to file an appropriate claim for and on behalf of the Holders
of said Notes.  Nothing herein contained
shall be deemed to authorize the Trustee or the holders of Senior Debt or their
Representative 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 thereof, or to authorize the
Trustee or the holders of Senior Debt or their Representative to vote in
respect of the claim of any Holder in any such proceeding.


 


SECTION 10.13.                                        Amendments.


 


The provisions of this Article 10 shall not be amended or modified
without the written consent of the Representatives under all Designated Senior
Debt.


 


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 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.


 


97





















 


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 an Issuer, any right to require a proceeding first
against an 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.                                        Subordination
of Guarantee.


 


The Obligations of each Guarantor under its Guarantee pursuant to this Article 11
shall be junior and subordinated to the Senior Debt of such Guarantor on the
same basis as the Notes are junior and subordinated to the Senior Debt of the Issuers.  For the purposes of the foregoing sentence,
the Trustee and the Holders shall have the right to receive and/or retain
payments by any of the Guarantors (or any Persons acting on their behalf) only
at such times as they may receive and/or retain payments in respect of the
Notes pursuant to this Indenture, including Article 10 and the holders of
Senior Debt shall have the same rights and remedies provided for in Article 10.


 


SECTION 11.03.                                        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, without limitation, 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


 


98





















 


Guarantor under this Article 11, result
in the obligations of such Guarantor under its Guarantee not constituting a
fraudulent transfer or conveyance.


 


SECTION 11.04.                                        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 E 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 4.17, the
Company shall cause such Subsidiaries to execute supplemental indentures to
this Indenture and Guarantees in accordance with Section 4.17 and this Article 11,
to the extent applicable.


 


SECTION 11.05.                                        Guarantors May Consolidate,
etc., on Certain Terms.


 


Each Guarantor (other than any Guarantor whose Guarantee is to be
released in accordance with the terms of its Guarantee and Section 11.06) shall
not, and the Company shall not cause or permit any Guarantor to, consolidate
with or merge with or into any 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.


 


99





















 


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 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 11.06.                                        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)            upon
Legal Defeasance, Covenant Defeasance or satisfaction and discharge of the
Notes as provided in Article 8; or


 


(4)            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 4.17.


 


100





















 


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 a Registration Statement (as defined in
the Registration Rights Agreement) or the consummation of a Registered Exchange
Offer, whichever occurs first, 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 (as defined in the
Registration Rights Agreement) or the consummation of a Registered Exchange
Offer, whichever occurs first, 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 an 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 an Issuer and/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.


 


101





















 


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


 


Either Issuer, any Guarantor or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices or
communications.


 


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.


 


102


















 


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;


 


(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 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.


 


THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


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 its successors.  All
agreements of the Trustee in this Indenture shall bind its successors.


 


103





















 


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.


 


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]


 


104





















 


Amended and Restated as of July 8,
2005


 


	
   

  	
  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:

  



 


105





















 


EXHIBIT A


 


FORM OF
NOTE(1)


 


 


 










(1)           Insert
legends from Section 2.06(g) as appropriate.


 


A-1





















 


(Form of Face of Note)


 


NEFF RENTAL LLC


NEFF FINANCE CORP.


 


13% SENIOR SUBORDINATED NOTES
DUE 2013


 


	
  No.

  	
  CUSIP:

  
	
  $

  	
  ISIN:

  



 


Neff Rental LLC, a limited liability company
organized under the laws of the State of Delaware, and Neff Finance Corp., a
corporation incorporated under the laws of the State of Delaware, jointly and
severally, promise to pay to                           
or their registered assigns, the principal sum of                                                                    
on June 15, 2013.


 


Interest
Payment Dates: June 15 and December 15, commencing first payment on December 15,
2005.


 


Record Dates: June 1
and December 1.


 


Reference is
made to the further provisions of this Note contained herein, which will for
all purposes have the same effect as if set forth at this place.


 


 


Dated:


 


A-2





















 


IN WITNESS WHEREOF, EACH OF NEFF RENTAL LLC
AND NEFF FINANCE CORP. has caused this Note to be signed by its duly authorized
officer.


 


	
   

  	
  NEFF RENTAL
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEFF FINANCE
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This is one of the [Definitive] [Global]

Notes referred to in the


within-mentioned Indenture:


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Trustee


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:
  Authorized Signatory

  



 


A-3





















 


(Form of Reverse Side of
Note)


 


NEFF RENTAL LLC


NEFF FINANCE CORP.


13% SENIOR SUBORDINATED NOTES
DUE 2013


 


Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.


 


1.             INTEREST.  Neff Rental LLC, a Delaware limited liability
company (the “Company”), and Neff Finance Corp., a Delaware corporation (“Finance
Corp.” and together with the Company, the “Issuers”), jointly and severally promise
to pay interest on the principal amount of this Note at 13% per annum from June 3,
2005 until maturity.  The Issuers shall
pay interest semi-annually on June 15 and December 15 of each year,
or if any such day is not a Business Day, on the next succeeding Business Day
(each an “Interest Payment Date”). 
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be December 15, 2005.  The Issuers shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.  Interest will be computed on the basis of a
360-day year of twelve 30-day months.


 


2.            METHOD
OF PAYMENT.  The Issuers will pay
interest on the Notes (except defaulted interest) to the Persons who are
registered Holders of Notes at the close of business on June 1 or December 1
immediately preceding the applicable Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest.  The Notes will be
payable as to principal, premium and interest at the office or agency of the
Issuers maintained for such purpose within or without the City and State of New
York, or, at the option of the Issuers, payments of interest may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium on,
all Global Notes and all other Notes the Holders of which shall have provided
wire transfer instructions to the Issuers or the Paying Agent.  Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal tender
for payment of public and private debts.


 


3.            PAYING
AGENT AND REGISTRAR.  Initially, Wells
Fargo Bank, National Association, the Trustee under the Indenture, will act as
Paying Agent and Registrar.  The Issuers
may change any Paying Agent or Registrar without notice to any Holder.  The Company or any of its Subsidiaries may
act in any such capacity.


 


4.            INDENTURE.  The Issuers issued the Notes under an
Indenture dated as of June 3, 2005 and amended and restated as of July 8,
2005 (the “Indenture”) among the Issuers, the Guarantors named therein and the
Trustee.  The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (15 U.S. Code


 


A-4





















 


Sections 77aaa-77bbbb).  The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. 
To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and
be controlling.  The Notes are joint and
several obligations of the Issuers.


 


5.            SUBORDINATION.  The Notes are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash and/or Cash Equivalents of all Senior Debt of the
Issuers, whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed. 
Each Holder by its acceptance hereof agrees to be bound by such provisions
and authorizes and expressly directs the Trustee, on its behalf, to take such
action as may be necessary or appropriate to effectuate the subordination provided
for in the Indenture.


 


6.            OPTIONAL
REDEMPTION.


 


(a)           On
and after June 15, 2007, the Issuers may redeem the Notes at its option,
in whole or in part, upon not less than 30 nor more than 60 days’ notice, at
the following redemption prices (expressed as percentages of the principal
amount thereof), if redeemed during the twelve-month period commencing on June 15
of the years indicated below:


 


	
  Year

  	
   

  	
  Percentage

  of Principal

  Amount

  	
   

  
	
  2007

  	
   

  	
  103.00

  	
  %

  
	
  2008

  	
   

  	
  102.00

  	
  %

  
	
  2009

  	
   

  	
  101.00

  	
  %

  
	
  2010 and
  thereafter

  	
   

  	
  100.00

  	
  %

  



 


In addition, the Issuers must pay all accrued
and unpaid interest on the Notes redeemed.


 


(b)          Prior
to June 15, 2007, the Issuers may on any one or more occasions redeem up
to 35% of the principal amount of Notes issued under the Indenture at a
redemption price of 113.00% of the principal amount thereof, plus accrued and unpaid
interest 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 the
Indenture remains outstanding immediately after the occurrence of such
redemption (excluding Notes held by the Company and its Subsidiaries); and provided further that the Issuers make such redemption not
more than 90 days after the consummation of such Equity Offering.


 


(c)           In
addition,  prior to June 15, 2007,
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 plus the Applicable Premium as of, and accrued and unpaid 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.


 


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


 


A-5





















 


8.            REPURCHASE
AT OPTION OF HOLDER.


 


(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 in the Indenture (the “Change of Control Offer”), at a purchase price
equal to 101% of the principal amount thereof plus accrued interest to the date
of purchase.  Within 30 days following
the date upon which the Change of Control occurred (or at the Issuers’ option,
prior to the occurrence of such Change of Control), the Issuers 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);


 


(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 Issuers, 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)          If
the Company or a Restricted Subsidiary consummates any Asset Sale, under
certain circumstances the Issuers are required to commence an offer to all
Holders of Notes (as “Net Proceeds Offer”) pursuant to Section 3.09 of the
Indenture.  The offer price for the Notes
(the “Net Proceeds Offer Amount”) will be at a price equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon, if any, to
the date fixed for the closing of such offer, in accordance with the procedures
set forth in the Indenture.  To the
extent that the aggregate amount of Notes (and pari passu
Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net
Proceeds Offer Amount, the Company (or such Subsidiary) may use such remaining
Net Proceeds Offer Amount for general corporate purposes or for any other
purpose not prohibited by the Indenture. 
If the aggregate principal amount of Notes surrendered by Holders
thereof (together with the aggregate amount of pari passu
Indebtedness tendered) exceeds the amount of Net Proceeds Offer Amount, the
Notes and such pari passu Indebtedness shall be
purchased on a pro rata basis.  Holders
of Notes that are the subject of an offer to purchase will receive a Net Proceeds
Offer from the Issuers prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Notes.


 


9.            NOTICE
OF REDEMPTION.  Notice of redemption will
be mailed, by first-class mail, at least 30 days but not more than 60 days
before the redemption date to each Holder whose Notes are to be redeemed at its
registered address.  Notes in
denominations larger than $1,000 may be redeemed in part but only in whole multiples
of $1,000, unless all of the Notes held by a Holder are to


 


A-6





















 


be redeemed.  On and after the
redemption date interest ceases to accrue on Notes or portions thereof called
for redemption, unless the Issuers fail to make such payment.


 


10.          DENOMINATIONS,
TRANSFER, EXCHANGE.  The Notes are in
registered form without coupons in minimum denominations of $2,000 and integral
multiples of $1,000.  The transfer of
Notes may be registered and Notes may be exchanged as provided in the
Indenture.  The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and the Issuers may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture.  The Issuers need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part.  Also, the Issuers need not exchange or
register the transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.


 


11.          PERSONS
DEEMED OWNERS.  The registered Holder of
a Note may be treated as its owner for all purposes.


 


12.          AMENDMENT,
SUPPLEMENT AND WAIVER.  Subject to
certain exceptions set forth in the Indenture, the Indenture, the Guarantees or
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, if any,
voting as a single class, and any existing default or compliance with any
provision of the 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, if any, voting as a single class.  Without the consent of any Holder of a Note,
the Indenture, the Guarantees or the Notes may be amended or supplemented to
cure any ambiguity, defect or inconsistency, 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), to provide for the assumption by a successor corporation of the Issuers’
or Guarantor’s obligations to Holders of the Notes in the case of a merger or
consolidation, to add Guarantees with respect to the Notes, or to secure the
Notes, 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
the Issuers or any Guarantor, to make any change that does not adversely affect
the rights of any Holder of the Notes, to comply with any requirement of the
SEC in connection with the qualification of this Indenture under the TIA or to
make any amendment to the provisions of this Indenture relating to the transfer
and legending of Notes; provided, however, that (a) compliance with the Indenture as so
amended would not result in notes being transferred in violation of the
Securities Act or any other applicable securities law and (b) such amendment
does not materially and adversely affect the rights of Holders to transfer
Notes.


 


13.          DEFAULTS
AND REMEDIES.  Events of Default include
(in summary form):  (i) the failure
to pay interest on any Notes when the same becomes due and payable if the
default continues for a period of 30 days, whether or not such payment shall be
prohibited by Article 10 of the Indenture; (ii) the failure to pay
the principal on any Notes when such principal becomes due and payable, at
maturity, upon redemption or otherwise (including the failure to make a payment
to 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), whether or not such payment shall be prohibited by Article 10
of the Indenture; (iii) the failure by the Issuers to comply with their
obligations under Section 5.01 of the Indenture; (iv) a default in
the observance or performance of any other covenant or agreement contained in
the Indenture 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)


 


A-7





















 


from the Trustee or the Holders of at least 25% of the outstanding
principal amount of the Notes; (v) 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 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; (vi) one or more judgments in an aggregate amount in
excess of $25.0 million shall have been rendered against any Issuer, any
Guarantor or any Significant Subsidiary of the Company and such judgments
remain undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable; (vii) certain
events of bankruptcy affecting any Issuer or any Significant Subsidiary of the
Company and (viii) 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 the Indenture).


 


If any Event
of Default 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.  Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of bankruptcy with respect to
any Issuer or Neff Rental, all outstanding Notes will become due and payable
without further action or notice. 
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture and under the TIA.  Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or
power.  The Trustee may withhold from Holders
of the Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest.  The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event
of Default and its consequences under the Indenture except a continuing Default
or Event of Default in the payment of principal of, premium or additional
interest, if any, or interest on the Notes. 
The Issuers are required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Issuers are required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.


 


14.          TRUSTEE
DEALINGS WITH COMPANY.  The Trustee, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Issuers or their Affiliates, and may otherwise
deal with the Issuers or their Affiliates, as if it were not the Trustee.


 


15.          NO
RECOURSE AGAINST OTHERS.  No past,
present or future director, officer, employee, incorporator, stockholder or
member of any Issuer or any of the Guarantors, as such, shall have any liability
for any obligations of such Issuer or such Guarantor under the Notes, the
Guarantees or the Indenture 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 the issuance of the Notes.


 


16.          AUTHENTICATION.  This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


A-8





















 


17.          ABBREVIATIONS.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).


 


18.          ADDITIONAL
RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE
NOTES.  In addition to the rights
provided to Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes shall have all the rights set forth in
the Registration Rights Agreement dated as of June 3, 2005, among the
Issuers and the parties named on the signature pages thereof.


 


19.          CUSIP
NUMBERS.  The Issuers may cause CUSIP
numbers to be printed on the Notes and the Trustee may use CUSIP numbers in
notices of redemption as a convenience to Holders.  No representation is made as to the accuracy
of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.


 


20.          DOCUMENT
REQUESTS.  The Issuers will furnish to
any Holder upon written request and without charge a copy of the Indenture and/or
the Registration Rights Agreement. 
Requests may be made to:


 


Neff Rental LLC

Neff Finance Corp.

3750 N.W. 87th Avenue

Suite 400

Miami, FL 33178


 


A-9





















 


ASSIGNMENT FORM


 


To assign this Note, fill in
the form below:


 


(I) or (we) assign and transfer
this Note to


 


	
   

  	
   

  
	
  (Insert assignee’s soc. sec. or tax I.D. no.)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Print or type assignee’s name, address and zip code)

  



 


and irrevocably appoint                                                  
to transfer this Note on the books of the Issuers.  The agent may substitute another to act for
him.


 


Date:


 


	
   

  	
  Your
  Signature:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears on the

  
	
   

  	
  face of this
  Note)

  
	
   

  	
   

  
	
   

  	
  Tax
  Identification No:

  
	
   

  	
   

  
	
   

  	
  SIGNATURE
  GUARANTEE:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signatures
  must be guaranteed by an “eligible guarantor institution” meeting the requirements
  of the Registrar, which requirements include membership or participation in
  the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature
  guarantee program” as may be determined by the Registrar in addition to, or
  in substitution for, STAMP, all in accordance with the Securities Exchange
  Act of 1934, as amended.

  
				



 


A-10





















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note
purchased by the Issuers pursuant to Section 4.10 or 4.15 of the Indenture,
check the box below:


 


o  Section 4.10         o  Section 4.15


 


If you want to elect to have only part of the
Note purchased by the Issuers pursuant to Section 4.10 or Section 4.15
of the Indenture, state the amount you elect to have purchased: $


 


 


Date:


 


 


	
  Your Signature:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Sign exactly as your name appears on the
  face of this Note)

  	
   

  
	
   

  	
   

  
	
  Tax Identification No:

  	
   

  
	
   

  	
   

  
	
  SIGNATURE GUARANTEE:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Signatures must be guaranteed by an “eligible
  guarantor institution” meeting the requirements of the Registrar, which requirements
  include membership or participation in the Security Transfer Agent Medallion
  Program (“STAMP”) or such other “signature guarantee program” as may be
  determined by the Registrar in addition to, or in substitution for, STAMP,
  all in accordance with the Securities Exchange Act of 1934, as amended.

  	
   

  
				



 


A-11





















 


EXHIBIT B


 


FORM OF
CERTIFICATE OF TRANSFER


 


Neff Rental LLC

Neff Finance Corp.

3750 N.W. 87th Avenue

Suite 400

Miami, Florida 33178


 


Wells Fargo Bank, National Association

213 Court St.

Suite 703

Middletown, CT 06457


 


Re:   13% Senior Subordinated
Notes due 2013


 


Reference is hereby made to the Indenture, dated as of June 3,
2005 and amended and restated as of July 8, 2005,  (the “Indenture”),
among Neff Rental LLC and Neff Finance Corp., as co-issuers (the “Issuers”), the Guarantors party thereto and Wells Fargo Bank,
National Association, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                               ,
(the “Transferor”) owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of $                            
in such Note[s] or interests (the “Transfer”), to                                                   
(the “Transferee”), as further specified in
Annex A hereto.  In connection with the
Transfer, the Transferor hereby certifies that:


 


[CHECK
ALL THAT APPLY]


 


1.             o  CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE
PURSUANT TO RULE 144A.  The Transfer is
being effected pursuant to and in accordance with Rule 144A under the
Securities Act of 1933, as amended (the “Securities Act”),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and each
such account is a “qualified institutional buyer” within the meaning of Rule 144A
in a transaction meeting the requirements of Rule 144A, and such Transfer
is in compliance with any applicable blue sky securities laws of any state of
the United States.  Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Restricted Definitive Note and in the Indenture
and the Securities Act.


 


2.             o  CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR A RESTRICTED DEFINITIVE
NOTE PURSUANT TO REGULATION S.  The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a Person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and


 


B-1





















 


neither such Transferor nor any Person acting
on its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities
Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser).
Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Restricted Definitive
Note and in the Indenture and the Securities Act.


 


3.             o  CHECK AND COMPLETE IF TRANSFEREE WILL TAKE
DELIVERY OF A BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A RESTRICTED
DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE
144A OR REGULATION S.  The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):


 


(a)           o  such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;


 


or


 


(b)           o  such Transfer is being effected to the
Company or a subsidiary thereof;


 


or


 


(c)           o  such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;


 


or


 


(d)           o  such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144,
Rule 903 or Rule 904, and the Transferor hereby further certifies
that it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) if such
Transfer is in respect of a principal amount of Notes at the time of transfer
of less than $250,000, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the IAI Global Note and/or the
Restricted Definitive Notes and in the Indenture and the Securities Act.


 


B-2





















 


4.             o  CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED
DEFINITIVE NOTE.


 


(a)           o  CHECK IF TRANSFER IS PURSUANT TO RULE
144.  (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act.  Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(b)           o  CHECK IF TRANSFER IS PURSUANT TO REGULATION
S.  (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.


 


(c)           o  CHECK IF TRANSFER IS PURSUANT TO OTHER
EXEMPTION.  (i) The Transfer is
being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903
or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.


 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.


 










 


	
   

  	
  [Insert Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


B-3





















 


ANNEX
A TO CERTIFICATE OF TRANSFER


 


1.             The
Transferor owns and proposes to transfer the following:


 


[CHECK
ONE OF (a) OR (b)]


 


	
  (a)

  	
  o a beneficial interest in the:

  
	
   

  	
   

  
	
    (i)

  	
  o 144A Global Note (CUSIP                  ),
  or

  
	
   

  	
   

  
	
   (ii)

  	
  o Regulation S Global Note (CUSIP                  ),
  or

  
	
   

  	
   

  
	
  (iii)

  	
  o IAI Global Note (CUSIP                  );
  or

  
	
   

  	
   

  
	
  (b)

  	
  o a Restricted Definitive Note.

  



 


2.             After the
Transfer the Transferee will hold:


 


[CHECK
ONE]


 


	
  (a)

  	
  o a beneficial interest in the:

  
	
   

  	
   

  
	
    (i)

  	
  o 144A Global Note (CUSIP                  ),
  or

  
	
   

  	
   

  
	
   (ii)

  	
  o Regulation S Global Note (CUSIP                  ),
  or

  
	
   

  	
   

  
	
  (iii)

  	
  o IAI Global Note (CUSIP                  );
  or

  
	
   

  	
   

  
	
  (iv)

  	
  o Unrestricted Global Note (CUSIP                  );
  or

  
	
   

  	
   

  
	
  (b)

  	
  o a Restricted Definitive Note; or

  
	
   

  	
   

  
	
  (c)

  	
  o an Unrestricted Definitive Note,

  
	
   

  	
   

  
	
  in
  accordance with the terms of the Indenture.

  



 





















 


EXHIBIT C


 


FORM OF
CERTIFICATE OF EXCHANGE


 


Neff Rental LLC

Neff Finance Corp.

3750 N.W. 87th Avenue

Suite 400

Miami, Florida 33178


 


Wells Fargo Bank, National Association

213 Court St.

Suite 703

Middletown, CT 06457


 


Re:  13% SENIOR SUBORDINATED NOTES DUE 2013


 


(CUSIP              )


 


Reference is hereby made to the Indenture, dated as of June 3,
2005 and amended and restated as of July 8, 2005, (the “Indenture”), among Neff Rental LLC and Neff Finance Corp.,
as co-issuers (the “Issuers”), the
Guarantors party thereto and Wells Fargo Bank, National Association, as
trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.


 


                                                     ,
(the “Owner”) owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $                 
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.             EXCHANGE OF
RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE
FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED
GLOBAL NOTE.


 


(a)           o  CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST
IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE.  In connection with the Exchange of
the Owner’s beneficial interest in a Restricted Global Note for a beneficial
interest in an Unrestricted Global Note in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.


 


(b)           o  CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST
IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired
for the


 


C-1





















 


Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Note
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.


 


(c)           o  CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


(d)           o  CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


2.             EXCHANGE OF
RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR
RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES.


 


(a)           o  CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST
IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Note and in the Indenture and the Securities Act.


 


(b)           o  CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE.  In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE] o
144A Global Note, o Regulation S
Global Note, o IAI Global Note
with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws


 


C-2





















 


of any state of the United States.  Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.


 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.


 










 


	
   

  	
  [Insert Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


C-3





















 


EXHIBIT D


 


FORM OF
CERTIFICATE FROM 

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


Neff Rental LLC

Neff Finance Corp.

3750 N.W. 87th Avenue

Suite 400

Miami, Florida 33178


 


Wells Fargo Bank, National Association

213 Court St.

Suite 703

Middletown, CT 06457


 


Re:  13% SENIOR SUBORDINATED NOTES DUE 2013


 


Reference is hereby made to the Indenture, dated as of June 3,
2005 and amended and restated as of July 8, 2005, (the “Indenture”), among Neff Rental LLC and Neff Finance Corp.,
as co-issuers (the “Issuers”), the
guarantors party thereto and Wells Fargo Bank, National Association, as
trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.


 


In connection with our proposed purchase of $                    
aggregate principal amount of:


 


(a)           o  a beneficial interest in a Global Note, or


 


(b)           o  a Definitive Note,


 


we confirm that:


 


1.             We understand that
any subsequent transfer of the Notes or any interest therein is subject to
certain restrictions and conditions set forth in the Indenture and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).


 


2.             We understand that
the offer and sale of the Notes have not been registered under the Securities
Act, and that the Notes and any interest therein may not be offered or sold
except as permitted in the following sentence. 
We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to
a “qualified institutional buyer” (as defined therein), (C) to an
institutional “accredited investor” (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you and to the Issuers a signed letter substantially in the form of this letter
and, if such transfer is in respect of a principal amount of Notes, at the time
of transfer of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in compliance
with the Securities Act, (D) outside the United States in accordance with Rule 904
of Regulation S under


 


D-1





















 


the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to
an effective registration statement under the Securities Act, and we further
agree to provide to any Person purchasing the Definitive Note or beneficial
interest in a Global Note from us in a transaction meeting the requirements of
clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.


 


3.             We understand that,
on any proposed resale of the Notes or beneficial interest therein, we will be
required to furnish to you and the Issuers such certifications, legal opinions
and other information as you and the Issuers may reasonably require to confirm
that the proposed sale complies with the foregoing restrictions.  We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.


 


4.             We are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its investment.


 


5.             We are acquiring the
Notes or beneficial interest therein purchased by us for our own account or for
one or more accounts (each of which is an institutional “accredited investor”) as
to each of which we exercise sole investment discretion.


 


You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.


 


[Insert Name of Accredited Investor]


 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Dated:


 


D-2





















 


EXHIBIT E


 


FORM OF GUARANTEE NOTATION


 


For value received, each Guarantor (which
term includes any successor Person under the Indenture) has, jointly and
severally, unconditionally guaranteed, to the extent set forth in the Indenture
and subject to the provisions in the Indenture dated as of June 3, 2005
and amended and restated as of July 8, 2005,  (the “Indenture”) among Neff Rental LLC and
Neff Finance Corp., the Guarantors named therein and Wells Fargo Bank, National
Association, as trustee (the “Trustee”), (a) the due and punctual payment
of the principal of, premium, if any, and interest on the Notes (as defined in
the Indenture), whether at maturity, by acceleration, redemption or otherwise,
the due and punctual payment of interest on overdue principal and premium, and,
to the extent permitted by law, interest, and the due and punctual performance
of all other obligations of the Issuers to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other obligations,
that the 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.  The obligations
of the Guarantors to the Holders of Notes and to the Trustee pursuant to the
Guarantee and the Indenture are expressly set forth in Article 11 of the
Indenture and reference is hereby made to the Indenture for the precise terms
of the Guarantee.  Each Holder of a Note,
by accepting the same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee, on behalf of such Holder, to take
such action as may be necessary or appropriate to effectuate the subordination
as provided in the Indenture and (c) appoints the Trustee attorney-in-fact
of such Holder for such purpose.  The
Guarantee is subordinated in right of payment, in the manner and to the extent
set forth in the Indenture, to the prior payment in full in cash and/or Cash
Equivalents of all Senior Debt of the Guarantor, whether outstanding on the
date of the Indenture or thereafter created, incurred, assumed or guaranteed.


 


 


	
   

  	
  [                                                              ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-1





















 


EXHIBIT F


 


FORM OF
SUPPLEMENTAL INDENTURE 

TO BE DELIVERED BY SUBSEQUENT GUARANTORS


 


SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”),
dated as of                         ,
200    , among                                        
(the “Guaranteeing Subsidiary”), a subsidiary
of Neff Rental LLC (or its permitted successor), a Delaware limited liability
(the “Company”), Neff Finance Corp., a
Delaware corporation (“Finance Corp.”
and together with the Company, the “Issuers”), the
other Guarantors (as defined in the Indenture referred to herein) and Wells
Fargo Bank, National Association, as trustee under the Indenture referred to
below (the “Trustee”).


 


W
I T N E S S E T H


 


WHEREAS, the Issuers have heretofore executed and delivered to the Trustee
an indenture (the “Indenture”),
dated as of June 3, 2005 and amended and restated as of July 8, 2005,
providing for the issuance of 13% Senior Subordinated Notes due 2013 (the “Notes”);


 


WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Issuers’
Obligations under the Notes and the Indenture on the terms and conditions set
forth herein (the “Subsidiary Guarantee”);
and


 


WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.


 


NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:


 


1.             Capitalized
Terms.  Capitalized terms used
herein without definition shall have the meanings assigned to them in the
Indenture.


 


2.             Guarantee.  The Guaranteeing Subsidiary hereby provides
its unconditional guarantee in respect of the Notes on the terms and subject to
the conditions set forth in the Subsidiary Guarantee and in the Indenture
including but not limited to Article 11 thereof, and agrees that it shall
be subject to, and bound by, all of the terms of the Indenture applicable to
the Guarantors.


 


3.             No Recourse
Against Others.  No past,
present or future director, officer, employee, incorporator, stockholder or
agent of the Guaranteeing Subsidiary, as such, shall have any liability for any
obligations of the Issuers or any Guaranteeing Subsidiary under the Notes, any
Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder of the Notes by accepting
a Note waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes. Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.


 


4.             NEW YORK LAW
TO GOVERN.  THE INTERNAL LAW
OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF


 


F-1





















 


LAW TO THE EXTENT THAT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


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


 


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


 


7.             The Trustee.  The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Issuers.


 


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


 


 


Dated:                       ,
20     


 


	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEFF
  RENTAL LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEFF FINANCE
  CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [EXISTING
  GUARANTORS]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


F-2





















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


F-3