EXHIBIT 10.1


 


EXECUTION VERSION


 




 





$225,000,000


 


AMENDED AND RESTATED CREDIT
AGREEMENT


 


DATED AS OF JULY 8, 2005


 


by and among


 


NEFF RENTAL, INC.,


as Borrower,


 


and


 


NEFF RENTAL LLC,


NEFF FINANCE CORP.


 


and


 


THE OTHER PERSONS PARTY HERETO
THAT ARE


DESIGNATED AS CREDIT PARTIES


 


and


 


GENERAL ELECTRIC CAPITAL
CORPORATION,


as Agent and a Lender,


 


and


 


THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO,


as Lenders,


 


BANK OF AMERICA, N.A.,


as Syndication Agent and L/C
Issuer


 


and


 


WACHOVIA BANK, NATIONAL
ASSOCIATION


and


THE CIT GROUP/BUSINESS CREDIT,
INC.,


as Co-Documentation Agents


 


and


 


GECC CAPITAL MARKETS GROUP,
INC.,


as Lead Arranger




 





 





















 


TABLE OF CONTENTS


 


	
  SECTION 1.

  	
  AMOUNTS AND TERMS OF LOANS

  	
   

  
	
  1.1

  	
   

  	
  Loans

  	
   

  
	
  1.2

  	
   

  	
  Interest

  	
   

  
	
  1.3

  	
   

  	
  Fees

  	
   

  
	
  1.4

  	
   

  	
  Payments

  	
   

  
	
  1.5

  	
   

  	
  Prepayments

  	
   

  
	
  1.6

  	
   

  	
  Maturity

  	
   

  
	
  1.7

  	
   

  	
  Eligible
  Accounts

  	
   

  
	
  1.8

  	
   

  	
  Eligible
  Parts Inventory

  	
   

  
	
  1.9

  	
   

  	
  Eligible Rental Fleet and Equipment

  	
   

  
	
  1.10

  	
   

  	
  Loan
  Accounts

  	
   

  
	
  1.11

  	
   

  	
  Yield Protection; Illegality

  	
   

  
	
  1.12

  	
   

  	
  Taxes

  	
   

  
	
  SECTION 2.

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
  2.1

  	
   

  	
  Compliance
  With Laws and Contractual Obligations

  	
   

  
	
  2.2

  	
   

  	
  Insurance; Damage to or Destruction of Collateral

  	
   

  
	
  2.3

  	
   

  	
  Inspection; Lender Meeting

  	
   

  
	
  2.4

  	
   

  	
  Organizational Existence

  	
   

  
	
  2.5

  	
   

  	
  Environmental
  Matters

  	
   

  
	
  2.6

  	
   

  	
  Landlords’ Agreements, Mortgagee Agreements, Bailee Letters and Real
  Estate Purchases

  	
   

  
	
  2.7

  	
   

  	
  Conduct
  of Business

  	
   

  
	
  2.8

  	
   

  	
  Further
  Assurances

  	
   

  
	
  2.9

  	
   

  	
  Control
  Agreements

  	
   

  
	
  2.10

  	
   

  	
  Post
  Closing Matters

  	
   

  
	
  SECTION 3.

  	
  NEGATIVE COVENANTS

  	
   

  
	
  3.1

  	
   

  	
  Indebtedness

  	
   

  
	
  3.2

  	
   

  	
  Liens and Related Matters

  	
   

  
	
  3.3

  	
   

  	
  Investments

  	
   

  
	
  3.4

  	
   

  	
  Contingent Obligations

  	
   

  



 


i





















 


	
  3.5

  	
   

  	
  Restricted Payments

  	
   

  
	
  3.6

  	
   

  	
  Amendments to Constituent Documents; Restriction on Fundamental
  Changes

  	
   

  
	
  3.7

  	
   

  	
  Disposal of Assets or Subsidiary Stock

  	
   

  
	
  3.8

  	
   

  	
  Transactions with Affiliates

  	
   

  
	
  3.9

  	
   

  	
  Conduct of Business

  	
   

  
	
  3.10

  	
   

  	
  Changes Relating to Indebtedness

  	
   

  
	
  3.11

  	
   

  	
  Fiscal Year

  	
   

  
	
  3.12

  	
   

  	
  Press Release; Public Offering Materials

  	
   

  
	
  3.13

  	
   

  	
  Subsidiaries

  	
   

  
	
  3.14

  	
   

  	
  Bank Accounts; Securities Accounts;
  Commodities Accounts

  	
   

  
	
  3.15

  	
   

  	
  Hazardous Materials

  	
   

  
	
  3.16

  	
   

  	
  ERISA

  	
   

  
	
  3.17

  	
   

  	
  Lease Limits

  	
   

  
	
  3.18

  	
   

  	
  Prepayments of Other Indebtedness

  	
   

  
	
  3.19

  	
   

  	
  Changes to Material Contracts

  	
   

  
	
  SECTION 4.

  	
  FINANCIAL and other REPORTING covenants

  	
   

  
	
  4.1

  	
   

  	
  Financial Statements and Other Reports

  	
   

  
	
  4.2

  	
   

  	
  Accounting Terms; Utilization of GAAP for Purposes of Calculations
  Under Agreement

  	
   

  
	
  SECTION 5.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  5.1

  	
   

  	
  Disclosure

  	
   

  
	
  5.2

  	
   

  	
  No Material Adverse Effect

  	
   

  
	
  5.3

  	
   

  	
  No Conflict

  	
   

  
	
  5.4

  	
   

  	
  Organization, Powers, Capitalization and
  Good Standing

  	
   

  
	
  5.5

  	
   

  	
  Financial Statements and Projections

  	
   

  
	
  5.6

  	
   

  	
  Intellectual Property

  	
   

  
	
  5.7

  	
   

  	
  Investigations, Audits, Etc

  	
   

  
	
  5.8

  	
   

  	
  Employee Matters

  	
   

  
	
  5.9

  	
   

  	
  Solvency

  	
   

  



 


ii





















 


	
  5.10

  	
   

  	
  Litigation; Adverse Facts

  	
   

  
	
  5.11

  	
   

  	
  Use of Proceeds; Margin Regulations

  	
   

  
	
  5.12

  	
   

  	
  Ownership of Property; Liens

  	
   

  
	
  5.13

  	
   

  	
  Environmental Matters

  	
   

  
	
  5.14

  	
   

  	
  ERISA

  	
   

  
	
  5.15

  	
   

  	
  Brokers

  	
   

  
	
  5.16

  	
   

  	
  Deposit Accounts; Securities Accounts; Other Accounts

  	
   

  
	
  5.17

  	
   

  	
  Agreements and Other Documents

  	
   

  
	
  5.18

  	
   

  	
  Insurance

  	
   

  
	
  5.19

  	
   

  	
  Investment Company Act; Public Utility Holding Company Act

  	
   

  
	
  5.20

  	
   

  	
  Designation of Debt

  	
   

  
	
  SECTION 6.

  	
  DEFAULT, RIGHTS AND REMEDIES

  	
   

  
	
  6.1

  	
   

  	
  Event of Default

  	
   

  
	
  6.2

  	
   

  	
  Suspension or Termination of Commitments

  	
   

  
	
  6.3

  	
   

  	
  Acceleration and other Remedies

  	
   

  
	
  6.4

  	
   

  	
  Performance by Agent

  	
   

  
	
  6.5

  	
   

  	
  Application of Proceeds

  	
   

  
	
  SECTION 7.

  	
  CONDITIONS TO LOANS

  	
   

  
	
  7.1

  	
   

  	
  Conditions to Initial Loans

  	
   

  
	
  7.2

  	
   

  	
  Conditions to All Loans

  	
   

  
	
  SECTION 8.

  	
  ASSIGNMENT AND PARTICIPATION

  	
   

  
	
  8.1

  	
   

  	
  Assignment and Participations

  	
   

  
	
  8.2

  	
   

  	
  Agent

  	
   

  
	
  8.3

  	
   

  	
  Set Off and Sharing of Payments

  	
   

  
	
  8.4

  	
   

  	
  Disbursement of Funds

  	
   

  
	
  8.5

  	
   

  	
  Disbursements of Advances; Payment

  	
   

  
	
  8.6

  	
   

  	
  Related Obligations Matters

  	
   

  
	
  8.7

  	
   

  	
  Other
  Agents

  	
   

  
	
  SECTION 9.

  	
  MISCELLANEOUS

  	
   

  



 


iii





















 


	
  9.1

  	
   

  	
  Indemnities

  	
   

  
	
  9.2

  	
   

  	
  Amendments and Waivers

  	
   

  
	
  9.3

  	
   

  	
  Notices

  	
   

  
	
  9.4

  	
   

  	
  Failure or Indulgence Not Waiver; Remedies Cumulative

  	
   

  
	
  9.5

  	
   

  	
  Marshaling; Payments Set Aside

  	
   

  
	
  9.6

  	
   

  	
  Severability

  	
   

  
	
  9.7

  	
   

  	
  Lenders’ Obligations Several; Independent Nature of Lenders’ Rights

  	
   

  
	
  9.8

  	
   

  	
  Headings

  	
   

  
	
  9.9

  	
   

  	
  Applicable Law

  	
   

  
	
  9.10

  	
   

  	
  Successors and Assigns

  	
   

  
	
  9.11

  	
   

  	
  No Fiduciary Relationship; Limited Liability

  	
   

  
	
  9.12

  	
   

  	
  Construction

  	
   

  
	
  9.13

  	
   

  	
  Confidentiality

  	
   

  
	
  9.14

  	
   

  	
  CONSENT TO JURISDICTION

  	
   

  
	
  9.15

  	
   

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
  9.16

  	
   

  	
  Survival of Warranties and Certain
  Agreements

  	
   

  
	
  9.17

  	
   

  	
  Entire Agreement

  	
   

  
	
  9.18

  	
   

  	
  Counterparts; Effectiveness

  	
   

  
	
  9.19

  	
   

  	
  Replacement of Lenders

  	
   

  
	
  9.20

  	
   

  	
  Release of Neff Corp

  	
   

  



 


iv





















 


INDEX OF APPENDICES


 


	
  Annexes

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Annex
  A

  	
  -

  	
  Definitions

  	
   

  
	
  Annex B

  	
  -

  	
  Pro Rata Shares and Commitment Amounts

  	
   

  
	
  Annex C

  	
  -

  	
  Closing Checklist

  	
   

  
	
  Annex D

  	
  -

  	
  Pro Forma

  	
   

  
	
  Annex E

  	
  -

  	
  Lenders’ Bank Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit 1.1(a)(i)

  	
  -

  	
  Revolving Note

  	
   

  
	
  Exhibit 1.1(a)(ii)

  	
  -

  	
  Notice of Revolving Credit Advance

  	
   

  
	
  Exhibit 1.1(b)

  	
  -

  	
  Swing Line Note

  	
   

  
	
  Exhibit 1.2(e)

  	
  -

  	
  Notice of Continuation/Conversion

  	
   

  
	
  Exhibit 4.1(d)

  	
  -

  	
  Borrowing
  Base Certificate

  	
   

  
	
  Exhibit 4.1(l)

  	
  -

  	
  Compliance
  and Pricing Certificate

  	
   

  
	
  Exhibit 8.1

  	
  -

  	
  Assignment Agreement

  	
   

  
	
  Exhibit A

  	
  -

  	
  Form of
  Joinder Agreement

  	
   

  
	
  Exhibit B

  	
  -

  	
  Form of
  Intercreditor Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  	
   

  
	
  Schedule 1.1(c)

  	
  -

  	
  Letters of Credit

  	
   

  
	
  Schedule 2.7

  	
  -

  	
  Corporate and Trade Names

  	
   

  
	
  Schedule 3.2

  	
  -

  	
  Existing Liens

  	
   

  
	
  Schedule 3.3

  	
  -

  	
  Existing Investments

  	
   

  
	
  Schedule 3.4

  	
  -

  	
  Existing Contingent Obligations

  	
   

  
	
  Schedule 3.8

  	
  -

  	
  Affiliate Transactions

  	
   

  
	
  Schedule 3.9

  	
  -

  	
  Business Description

  	
   

  
	
  Schedule 5.4(a)

  	
  -

  	
  Jurisdictions of Organization and
  Qualifications

  	
   

  
	
  Schedule 5.4(b)

  	
  -

  	
  Capitalization

  	
   

  
	
  Schedule 5.6

  	
  -

  	
  Intellectual Property

  	
   

  
	
  Schedule 5.7

  	
  -

  	
  Investigations and Audits

  	
   

  
	
  Schedule 5.8

  	
  -

  	
  Employee Matters

  	
   

  
	
  Schedule 5.10

  	
  -

  	
  Litigation; Adverse Facts

  	
   

  
	
  Schedule 5.12

  	
  -

  	
  Real Estate

  	
   

  
	
  Schedule 5.13

  	
  -

  	
  Environmental Matters

  	
   

  
	
  Schedule 5.14

  	
  -

  	
  ERISA

  	
   

  
	
  Schedule 5.16

  	
  -

  	
  Bank Accounts, Securities Accounts; Other
  Accounts

  	
   

  
	
  Schedule 5.17

  	
  -

  	
  Agreements and Other Documents

  	
   

  
	
  Schedule 5.18

  	
  -

  	
  Insurance

  	
   

  



 


v





















 


AMENDED AND
RESTATED CREDIT AGREEMENT


 


This AMENDED AND RESTATED CREDIT AGREEMENT is
dated as of July 8, 2005 and entered into by and among NEFF RENTAL, INC.,
a Florida corporation (“NEFF” or “Borrower”), NEFF RENTAL LLC, a
Delaware limited liability company (“NEFF LLC” or “Holdings”),
NEFF Finance Corp., a Delaware corporation (“Finance Corp.”) and the
other persons designated as “Credit Parties” on the signature pages hereof
and each other person which becomes party hereto as a Credit Party pursuant to Section 2.8
below, the financial institutions who are or hereafter become parties to this
Agreement as Lenders, BANK OF AMERICA, N.A. (in its individual capacity, “Bank
of America”), as the initial L/C Issuer (as defined below) and as
syndication agent, WACHOVIA BANK, NATIONAL ASSOCIATION and THE CIT GROUP/BUSINESS
CREDIT, INC., as co-documentation agents, and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation (in its individual capacity “GE Capital”),
as Agent (as defined below).


 


R E C I T A L S:


 


WHEREAS, all capitalized terms used herein
shall have the meanings ascribed thereto in Annex A hereto which is
incorporated herein by reference; and


 


WHEREAS, pursuant to the Existing Credit
Agreement, Lenders extended a revolving credit facility to Borrower to fund the
repayment of certain then existing Indebtedness of Holdings and Borrower, to
provide financing for ongoing working capital purposes and other general
corporate purposes (including financing Capital Expenditures and Permitted
Acquisitions) of Borrower; and


 


WHEREAS, NEFF Corp., a Delaware corporation
and the direct parent company of Holdings and the indirect parent company of
Borrower (“Parent”) guaranteed the obligations of Borrower under the
Existing Credit Agreement; and


 


WHEREAS, in connection with the NEFF
Reorganization, Parent will be released from its obligations as a guarantor of
Borrower’s obligations under the Existing Credit Agreement; and


 


WHEREAS, the Borrower has requested, and the
other parties hereto have agreed, that the Existing Credit Agreement be amended
and restated on the terms and conditions set forth herein; and


 


WHEREAS, Borrower desires to secure all of
its Obligations under the Loan Documents and the Related Swap Contracts by
granting to Agent, for the benefit of Agent and the Secured Parties, a security
interest in and Lien upon substantially all of their personal and real
property; and


 


WHEREAS, each of Holdings, Finance Corp. and
each of Borrower’s Subsidiaries is willing to guaranty all of the Obligations
of Borrower and to grant to Agent, for


 





















 


the benefit of Agent and the
Secured Parties, a security interest in and Lien upon substantially all of its
personal and material real property to secure the Obligations; and


 


WHEREAS, it is the intention of the parties
hereto that this Agreement does not constitute a novation of the rights,
obligations and liabilities of the respective parties (including the
Obligations) existing under the Existing Credit Agreement or evidence payment
of all or any such obligations and liabilities; and


 


NOW, THEREFORE, in consideration of the
premises and the agreements, provisions and covenants herein contained,
Borrower, the other Credit Parties, Lenders and Agent agree as follows:


 


SECTION 1.

AMOUNTS AND TERMS OF LOANS


 


1.1           Loans.  Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Borrower
and the other Credit Parties contained herein:


 


(a)           Revolving
Loans.


 


(i)            Each
Lender agrees, severally and not jointly, to make available to Borrower from
time to time until the Commitment Termination Date its Pro Rata Share of
advances (each a “Revolving Credit Advance”) requested by Borrower
hereunder.  The Pro Rata Share of the
Revolving Loan of any Lender (including, without duplication, Swing Line Loans
and Letter of Credit Obligations) shall not at any time exceed its separate
Revolving Loan Commitment.  Revolving
Credit Advances may be repaid and reborrowed; provided, that the amount
of any Revolving Credit Advance to be made at any time shall not exceed
Borrowing Availability.  The Borrowing
Base may be further reduced by Reserves imposed by Agent in its reasonable
credit judgment exercised in good faith. 
All Revolving Loans shall be repaid in full on the Commitment
Termination Date.  Promptly upon request
by a Lender, Borrower shall execute and deliver to such Lender a note to
evidence the Revolving Loan Commitment of such Lender.  Each note shall be in the principal amount of
the Revolving Loan Commitment of the applicable Lender, dated the Amendment and
Restatement Date (or, if later, as of the date on which such Person became a
Lender under this Agreement pursuant to an Assignment Agreement) and
substantially in the form of Exhibit 1.1(a)(i) (each a “Revolving
Note” and, collectively, the “Revolving Notes”).  Other than pursuant to Section 1.1(a)(ii),
if at any time the outstanding Revolving Loans (including the outstanding Swing
Line Loans and Letter of Credit Obligations) exceed the Borrowing Base (any
such excess Revolving Loans are herein referred to collectively as “Overadvances”),
Lenders shall not be obligated to make Revolving Credit Advances, no additional
Letters of Credit shall be issued and, except as provided in Section 1.1(a)(ii) below,
Revolving Loans must be repaid immediately and Letters of Credit cash
collateralized in an amount sufficient to eliminate any Overadvances.  All Overadvances shall constitute Index Rate
Loans and shall bear interest at the Default Rate.  Revolving Loans which are Index Rate Loans
may be requested in any amount with one (1) Business Day prior written
notice required for funding requests equal to or greater than $5,000,000.  For funding requests


 


2





















 


for such Loans less than
$5,000,000, written notice must be provided by 12:00 p.m. (noon) (New York
time) on the Business Day on which the Loan is to be made.  All LIBOR Loans require three (3) Business
Days prior written notice. Written notices for funding requests shall be in the
form attached as Exhibit 1.1(a)(ii) (“Notice of Revolving
Credit Advance”).


 


(ii)           If
Borrower requests that Lenders make, or permit to remain outstanding any
Overadvances, Agent may, in its sole discretion, elect to make, or permit to
remain outstanding such Overadvances; provided, however, that
Agent may not require Lenders to make, or permit to remain outstanding, (a) aggregate
Revolving Loans (including, without duplication, Swing Line Loans) in excess of
the Maximum Amount or (b) Overadvances in an aggregate amount in excess of
$3,000,000.  If an Overadvance is made, or
permitted to remain outstanding, pursuant to the preceding sentence, then all
Lenders shall be bound to make, or permit to remain outstanding such
Overadvance based upon their Pro Rata Shares of the Revolving Loan Commitments
in accordance with the terms of this Agreement. 
If an Overadvance remains outstanding for more than thirty (30)
consecutive days during any one hundred eighty (180) day period, Revolving
Loans must be repaid immediately in an amount sufficient to eliminate all of
such Overadvances; provided, that the Requisite Lenders may
prospectively revoke Agent’s ability to make or permit Overadvances by written
notice to Agent.  Any Overadvance may be
made as a Swing Line Advance; and provided, further, that if an
Event of Default shall have occurred and be continuing, no Overadvance may be
made unless such Overadvance constitutes a Protective Overadvance.


 


(iii)          By
notice to Agent, Borrower may request an increase (each a “Facility Increase”)
in the Revolving Loan Commitments (each such additional Revolving Loan
Commitment, an “Incremental Revolving Loan Commitment”); provided,
however, that (A) no Facility Increase shall be effective later
than the fourth (4th) anniversary of the Original Closing Date, (B) no
Facility Increase shall be effective earlier than ten (10) days after the
delivery of notice to Agent, (C) any increase shall be in a minimum amount
of $10,000,000 and multiples of $5,000,000 in excess thereof, and (D) the
aggregate amount of additions pursuant to this Section 1.1(a)(iii) shall
not exceed $25,000,000.  Nothing in this
Agreement shall be construed to obligate any Lender to increase its Revolving
Loan Commitments, and the terms of and documentation entered into in respect of
the Loans pursuant to any Facility Increase, to the extent not consistent with
the terms of the Commitments in effect prior to such Facility Increase, shall
be reasonably acceptable to Agent and Borrower and shall be applicable only to
the increased Commitments and Loans thereunder.


 


(iv)          In
the event that Borrower requests a Facility Increase:


 


(A)          Agent
shall promptly notify each Lender of the proposed Facility Increase and, to the
extent inconsistent with the terms of the Loans made pursuant to Commitments in
effect prior to such Facility Increase, of the proposed terms and conditions
therefor agreed between Borrower and Agent. 
Each Lender (and its Affiliates and Approved Funds) may, in its sole
discretion, commit to participate in such Facility Increase by forwarding its
commitment therefor to Agent in form and substance reasonably satisfactory to
Agent, on or before the date specified in such notice.  Borrower may also invite other Qualified
Assignees to provide such Incremental Revolving Loan


 


3





















 


Commitments if the Lenders (or their
Affiliates or Approved Funds) do not commit to provide the requested
Incremental Revolving Loan Commitment which shall be evidenced by a formal
agreement in form and substance satisfactory to Agent.  Agent shall allocate, in its sole discretion,
the Incremental Revolving Loan Commitments to be made as part of the Facility
Increase to such Lenders (or Affiliates or Approved Funds of such Lenders) or
Qualified Assignees (the “Incremental Lenders”).


 


(B)           The
Facility Increase shall become effective on a date agreed by Borrower and Agent
(each a “Facility Increase Date”). 
Agent shall notify the Lenders and Borrower, on or before 12:00 p.m.
(noon) New York time on the day following the Facility Increase Date of the
effectiveness of the Facility Increase on the Facility Increase Date and shall
record in the Loan Account all applicable additional information in respect of
such Facility Increase.


 


(C)           All
Incremental Revolving Loan Commitments shall be deemed Revolving Loan
Commitments and Commitments (and all advances made pursuant to a Facility
Increase shall be deemed to be Revolving Loans) for all purposes of this
Agreement and the other Loan Documents. 
Any such Revolving Loans made to Borrower pursuant to an Incremental
Revolving Loan Commitment may be borrowed, repaid and reborrowed in accordance
with the terms of this Agreement applicable to Revolving Loans.


 


(D)          Notwithstanding
anything to the contrary in this Section 1.1(a)(iv), the Applicable
Margin applicable to the Revolving Loans made pursuant to any Incremental
Revolving Loan Commitment shall be the same as the Applicable Margin applicable
to the Revolving Loans made pursuant to the Revolving Loan Commitments as in
effect prior to the applicable Facility Increase.


 


(b)           Swing
Line Facility.


 


(i)            Agent
shall notify the Swing Line Lender upon Agent’s receipt of any Notice of
Revolving Credit Advance.  Subject to the
terms and conditions hereof, the Swing Line Lender may, in its discretion, make
available from time to time until the Commitment Termination Date advances
(each, a “Swing Line Advance”) in accordance with any such notice.  The provisions of this Section 1.1(b) shall
not relieve Lenders of their obligations to make Revolving Credit Advances
under Section 1.1(a); provided, that if the Swing Line
Lender makes a Swing Line Advance pursuant to any such notice, such Swing Line
Advance shall be in lieu of any Revolving Credit Advance that otherwise may be
made by Lenders pursuant to such notice. 
Except as provided in Section 1.1(a)(ii) above, the
aggregate amount of Swing Line Advances outstanding shall not exceed at any
time the lesser of (A) the Swing Line Commitment and (B) Borrowing
Availability (“Swing Line Availability”).  Moreover, except for Overadvances, the Swing
Line Loan outstanding to Borrower shall not exceed at any time the Borrowing
Base less the Revolving Loans (including the outstanding Letter of
Credit Obligations) then outstanding. 
Until the Commitment Termination Date, Borrower may from time to time
borrow, repay and reborrow under this Section 1.1(b).  Each Swing Line Advance shall be made
pursuant to a Notice of Revolving Credit Advance delivered by Borrower to Agent
in accordance with Section 1.1(a).


 


4





















 


Unless the Swing Line Lender
has received at least one (1) Business Day’s prior written notice from
Requisite Lenders instructing it not to make a Swing Line Advance, the Swing
Line Lender shall, notwithstanding the failure of any condition precedent set
forth in Section 7.2, be entitled to fund that Swing Line Advance,
and to have each Lender make Revolving Credit Advances in accordance with Section 1.1(b)(iii) or
purchase participating interests in accordance with Section 1.1(b)(iv).  Notwithstanding any other provision of this
Agreement or the other Loan Documents, the Swing Line Loan shall constitute an
Index Rate Loan.  Borrower shall repay
the aggregate outstanding principal amount of the Swing Line Loan upon demand
therefor by Agent. The entire unpaid balance of the Swing Line Loan and all
other noncontingent Obligations shall be immediately due and payable in full in
immediately available funds on the Commitment Termination Date if not sooner
paid in full.


 


(ii)           Borrower
shall execute and deliver to the Swing Line Lender a promissory note to
evidence the Swing Line Commitment, which promissory note shall be in the
principal amount of the Swing Line Commitment of the Swing Line Lender, dated
the Amendment and Restatement Date (or, in the case of any successor Swing Line
Lender, the date on which such Person becomes the Swing Line Lender pursuant to
this Agreement) and substantially in the form of Exhibit 1.1(b) (the
“Swing Line Note”).  The Swing
Line Note shall represent the obligation of Borrower to pay the amount of the
Swing Line Commitment or, if less, the aggregate unpaid principal amount of all
Swing Line Advances made to Borrower together with interest thereon as
prescribed in Section 1.2.


 


(iii)          The
Swing Line Lender, at any time and from time to time in its sole and absolute
discretion but no less frequently than once weekly, will on behalf of Borrower
(and Borrower hereby irrevocably authorizes the Swing Line Lender to so act on
its behalf) request each Lender (including the Swing Line Lender) to make a
Revolving Credit Advance to Borrower (which shall be an Index Rate Loan) in an
amount equal to that Lender’s Pro Rata Share of the principal amount of the
Swing Line Loan (the “Refunded Swing Line Loan”) outstanding on the date
such notice is given.  Unless any of the
events described in Sections 6.1(f) or 6.1(g) has
occurred (in which event the procedures of Section 1.1(b)(iv) shall
apply) and regardless of whether the conditions precedent set forth in this
Agreement to the making of a Revolving Credit Advance are then satisfied, each
Lender shall disburse directly to Agent, its Pro Rata Share of a Revolving
Credit Advance on behalf of the Swing Line Lender, prior to 3:00 p.m. (New
York time), in immediately available funds on the Business Day next succeeding
the date that notice is given.  The
proceeds of such Revolving Credit Advances shall be immediately paid to the
Swing Line Lender and applied to repay the Refunded Swing Line Loan of
Borrower.


 


(iv)          If,
prior to refunding a Swing Line Loan with a Revolving Credit Advance pursuant
to Section 1.1(b)(iii), one of the events described in Sections
6.1(f) or 6.1(g) has occurred, then, subject to the
provisions of Section 1.1(b)(v) below, each Lender shall, on
the date such Revolving Credit Advance was to have been made for the benefit of
Borrower, purchase from the Swing Line Lender an undivided participation
interest in the Swing Line Loan to Borrower in an amount equal to its Pro Rata
Share (determined with respect to Revolving Loans) of such Swing Line
Loan.  Upon request, each Lender shall
promptly transfer to the Swing Line Lender, in immediately available funds, the
amount of its participation interest.


 


5





















 


(v)           Each
Lender’s obligation to make Revolving Credit Advances in accordance with Section 1.1(b)(iii) and
to purchase participation interests in accordance with Section 1.1(b)(iv) shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
that such Lender may have against the Swing Line Lender, Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of any
Default or Event of Default; (C) any inability of Borrower to satisfy the
conditions precedent to borrowing set forth in this Agreement at any time or (D) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.  Swing Line Lender
shall be entitled to recover, on demand, from each Lender the amounts required
pursuant to Sections 1.1(b)(iii) or 1.1(b)(iv), as the case
may be.  If any Lender does not make
available such amounts to Agent or the Swing Line Lender, as applicable, the
Swing Line Lender shall be entitled to recover, on demand, such amount on
demand from such Lender, together with interest thereon for each day from the
date of non-payment until such amount is paid in full at the Federal Funds Rate
for the first two (2) Business Days and at the Index Rate thereafter.


 


(c)           Letters
of Credit.  The Revolving Loan
Commitment may, in addition to advances under the Revolving Loan, be utilized,
upon the request of Borrower, for the issuance of Letters of Credit.  Immediately upon the issuance by an L/C
Issuer of a Letter of Credit, and without further action on the part of Agent
or any of the Lenders, each Lender shall be deemed to have purchased from such
L/C Issuer a participation in such Letter of Credit (or in its obligation under
a risk participation agreement with respect thereto) equal to such Lender’s Pro
Rata Share of the maximum aggregate amount available to be drawn under each
such Letter of Credit.


 


(i)            L/C
Sublimit.  The aggregate amount of
Letter of Credit Obligations with respect to all Letters of Credit outstanding
at any time shall not exceed $20,000,000 (the “L/C Sublimit”).


 


(ii)           Reimbursement.  Borrower shall be irrevocably and
unconditionally obligated forthwith without presentment, demand, protest or
other formalities of any kind, to reimburse each L/C Issuer on demand in
immediately available funds for any amounts paid by such L/C Issuer with
respect to a Letter of Credit, including all reimbursement payments, Fees,
Charges, costs and expenses paid or incurred by such L/C Issuer.  Borrower hereby authorizes and directs Agent,
at Agent’s option, to debit Borrower’s account (by increasing the outstanding
principal balance of the Revolving Credit Advances) in the amount of (A) any
payment made by an L/C Issuer with respect to any Letter of Credit and (B) the
amount of any fees payable to L/C Issuer pursuant to Section 1.3(c).  All amounts paid by an L/C Issuer with
respect to any Letter of Credit that are not immediately repaid by Borrower
with the proceeds of a Revolving Credit Advance or otherwise shall bear interest
at the interest rate applicable to Revolving Loans which are Index Rate Loans
plus, at the election of Agent (or upon the written request of the Requisite
Lenders) an additional two percent (2.00%) per annum.  Each Lender agrees to fund its Pro Rata Share
of any Revolving Loan made pursuant to this Section 1.1(c)(ii).  In the event Agent elects not to debit
Borrower’s account and Borrower fails to reimburse the L/C Issuer in full on
the date of any payment in respect of a Letter of Credit, Agent shall promptly
notify each Lender of the amount of such unreimbursed payment and the accrued
interest thereon and each Lender, on the next Business Day prior to 3:00 p.m.
(New


 


6





















 


York time), shall deliver to
Agent an amount equal to its Pro Rata Share thereof in same day
funds.  Each Lender hereby absolutely and
unconditionally agrees to pay to the L/C Issuer upon demand by the L/C Issuer
such Lender’s Pro Rata Share of each payment made by the L/C Issuer in respect
of a Letter of Credit and not immediately reimbursed by Borrower or satisfied
through a debit of Borrower’s account. 
Each Lender acknowledges and agrees that its obligations pursuant to
this subsection in respect of Letters of Credit are absolute and unconditional
and shall not be affected by any circumstance whatsoever, including setoff,
counterclaim, the occurrence and continuance of a Default or an Event of
Default or any failure by Borrower to satisfy any of the conditions set forth
in Section 7.2.  If any
Lender fails to make available to the L/C Issuer the amount of such Lender’s
Pro Rata Share of any payments made by the L/C Issuer in respect of a Letter of
Credit as provided in this Section 1.1(c)(ii), the L/C Issuer shall
be entitled to recover such amount on demand from such Lender together with
interest at the Index Rate.


 


(iii)          Request
for Letters of Credit.  Borrower
shall give Agent at least three (3) Business Days prior written notice
specifying the date a Letter of Credit is requested to be issued, the amount
and the name and address of the beneficiary and a description of the
transactions proposed to be supported thereby. 
If Agent informs Borrower that the L/C Issuer cannot issue the requested
Letter of Credit directly, Borrower may request that L/C Issuer arrange for the
issuance of the requested Letter of Credit under a risk participation agreement
with another financial institution reasonably acceptable to Agent, L/C Issuer
and Borrower.  The issuance of any Letter
of Credit under this Agreement shall be subject to the conditions that the
Letter of Credit (a) supports a transaction entered into in the ordinary
course of business of Borrower and (b) is in a form, is for an amount and
contains such terms and conditions as are satisfactory to the L/C Issuer and
Agent.  If L/C Issuer receives written
notice from Agent or the Requisite Lenders on or before the Business Day
preceding issuance of a Letter of Credit that any conditions set forth in Section 7.2
have not been satisfied, L/C Issuer shall have no obligation to issue the
requested Letter of Credit or any other Letter of Credit until such notice is
withdrawn in writing by Agent or the Requisite Lenders, as applicable.  Prior to its receipt of such notice from
Agent or the Requisite Lenders, L/C Issuer shall not be deemed to have notice
or knowledge of any Default, Event of Default or failure of such
conditions.  The initial notice
requesting the issuance of a Letter of Credit shall be accompanied by the form
of the Letter of Credit and the L/C Issuer’s reimbursement agreement and an
application for a letter of credit, if any, then required by the L/C Issuer
completed in a manner satisfactory to such L/C Issuer.  If any provision of any application or
reimbursement agreement is inconsistent with the terms of this Agreement, then
the provisions of this Agreement, to the extent of such inconsistency, shall
control.


 


(iv)          Expiration
Dates of Letters of Credit.  The
expiration date of each Letter of Credit shall be on a date which is not later than
the earlier of (a) one year from its date of issuance or (b) the
thirtieth (30th) day prior to the fifth (5th) anniversary of the
Original Closing Date.  Notwithstanding
the foregoing, a Letter of Credit may provide for automatic extensions of its
expiration date for one (1) or more successive one (1) year periods provided
that the L/C Issuer has the right to terminate such Letter of Credit on each
such annual expiration date and no renewal term may extend the term of the
Letter of Credit to a date that is later than the thirtieth (30th) day prior to
the fifth (5th) anniversary of the Original Closing Date.  The L/C


 


7





















 


Issuer may elect not to renew
any such Letter of Credit and, upon direction by Agent or Requisite Lenders,
shall not renew any such Letter of Credit, in each case, at any time during the
continuance of an Event of Default, provided that, in the case of a
direction by Agent or Requisite Lenders, the L/C Issuer receives such
directions prior to the date notice of non-renewal is required to be given by
the L/C Issuer and the L/C Issuer has had a reasonable period of time to act on
such notice.


 


(v)           Obligations
Absolute.  The obligation of Borrower
to reimburse the L/C Issuer, Agent and Lenders for payments made in respect of
Letters of Credit issued by the L/C Issuer shall be unconditional and
irrevocable and shall be paid under all circumstances strictly in accordance
with the terms of this Agreement, including the following circumstances: (a) any
lack of validity or enforceability of any Letter of Credit; (b) any
amendment or waiver of or any consent or departure from all or any of the
provisions of any Letter of Credit or any Loan Document; (c) the existence
of any claim, set-off, defense or other right which Borrower, any of its
Subsidiaries or Affiliates or any other Person may at any time have against any
beneficiary of any Letter of Credit, Agent, any L/C Issuer, any Lender or any
other Person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreements or transactions; (d) any
draft or other document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (e) payment under any
Letter of Credit against presentation of a draft or other document that does
not substantially comply with the terms of such Letter of Credit; or (f) any
other act or omission to act or delay of any kind of any L/C Issuer, Agent, any
Lender or any other Person or any other event or circumstance whatsoever that
might, but for the provisions of this Section 1.1(c)(v), constitute
a legal or equitable discharge of Borrower’s obligations hereunder.


 


(vi)          Obligations
of L/C Issuers.  Each L/C Issuer
(other than GE Capital) hereby agrees that it will not issue a Letter of Credit
hereunder until it has provided Agent with written notice specifying the amount
and intended issuance date of such Letter of Credit and Agent has returned a
written acknowledgment of such notice to L/C Issuer.  Each L/C Issuer (other than GE Capital)
further agrees to provide to Agent:  (a) a
copy of each Letter of Credit issued by such L/C Issuer promptly after its
issuance, amendment, extension or renewal; (b) a monthly report
summarizing available amounts under Letters of Credit issued by such L/C
Issuer, the dates and amounts of any draws under such Letters of Credit, the
effective date of any increase or decrease in the face amount of any Letters of
Credit during such month and the amount of any unreimbursed draws under such
Letters of Credit; and (c) such additional information reasonably
requested by Agent from time to time with respect to the Letters of Credit
issued by such L/C Issuer.  Without
limiting the generality of the foregoing, it is expressly understood and agreed
by Borrower that the absolute and unconditional obligation of Borrower to Agent
and Lenders hereunder to reimburse payments made under a Letter of Credit will
not be excused by the gross negligence or willful misconduct of the L/C
Issuer.  However, the foregoing shall not
be construed to excuse an L/C Issuer from liability to Borrower to the extent
of any direct damages (as opposed to consequential damages, with Borrower
hereby waiving all claims for any consequential damages to the extent permitted
by applicable law) suffered by Borrower that are subject to indemnification
under the L/C Issuer’s reimbursement agreement.


 


8





















 


(vii)         Outstanding
Letters of Credit.  Schedule 1.1(c) contains
a schedule of the Existing Letters of Credit outstanding under this
Agreement on the Amendment and Restatement Date.


 


(d)           Funding
Authorization.  The proceeds of all
Loans made pursuant to this Agreement subsequent to the Amendment and
Restatement Date are to be funded by Agent by wire transfer to the account
designated by Borrower below (the “Disbursement Account”):


 


	
  Bank:

  	
  Fleet National Bank

  
	
  ABA No.:

  	
  011900571

  
	
  Bank Address:

  	
  Hartford, CT

  
	
  Account No.:

  	
  942 911 8360

  
	
  Reference:

  	
  NEFF Rental, Inc. Master Operating
  Account

  



 


Borrower shall provide Agent with written notice of any change in the
foregoing instructions at least three (3) Business Days before the desired
effective date of such change.


 


1.2           Interest.


 


(a)           Borrower
shall pay interest to Agent, for the ratable benefit of Lenders, in accordance
with the various Loans being made by each Lender, in arrears on each applicable
Interest Payment Date, at the following rates: 
(i) with respect to the Revolving Credit Advances which are
designated as Index Rate Loans (and for all other Obligations not otherwise set
forth below), the Index Rate plus the Applicable Revolver Index Margin per
annum; (ii) with respect to Revolving Credit Advances which are designated
as LIBOR Loans, at the election of Borrower, the applicable LIBOR Rate plus the
Applicable Revolver LIBOR Margin per annum; and (iii) with respect to any
Swing Line Loans, the Index Rate plus the Applicable Revolver Index Margin per
annum.


 


(b)           If
any payment on any Loan becomes due and payable on a day other than a Business
Day, the maturity thereof will be extended to the next succeeding Business Day
(except as set forth in the definition of LIBOR Period) and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension.


 


(c)           All
computations of Fees calculated on a per annum basis and interest shall be made
by Agent on the basis of a 360-day year, in each case for the actual number of
days occurring in the period for which such Fees and interest are payable.  The Index Rate is a floating rate determined
for each day.  Each determination by Agent
of an interest rate and Fees hereunder shall be final, binding and conclusive
on Borrower and the other Credit Parties, absent manifest error.


 


(d)           So
long as any Event of Default has occurred and is continuing under Sections
6.1(a), 6.1(f) or 6.1(g), and without notice of any
kind, or so long as any other Event of Default has occurred and is continuing
and at the election of Agent confirmed by written notice from Agent to Borrower
(or upon the written request of Requisite Lenders), the interest rates
applicable to the Loans and the Letter of Credit Fee shall be increased by two percent
(2%) per


 


9





















 


annum above the rates of
interest or the rate of such Fee otherwise applicable hereunder (“Default
Rate”), and all outstanding Obligations shall bear interest at the Default
Rate applicable to such Obligations. 
Interest and Letter of Credit Fees at the Default Rate shall accrue from
the initial date of such Event of Default until that Event of Default is cured
or waived and shall be payable upon demand, but in any event, shall be payable
on the next regularly scheduled payment date set forth herein for such
Obligation.


 


(e)           Borrower
shall have the option to (i) request that any Revolving Credit Advance be
made as a LIBOR Loan, (ii) convert at any time all or any part of
outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to
LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject
to payment of the LIBOR Breakage Fee in accordance with Section 1.3(d) if
such conversion is made prior to the expiration of the LIBOR Period applicable
thereto, or (iv) continue all or any portion of any Loan (other than the
Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR
Period and the succeeding LIBOR Period of that continued Loan shall commence on
the first day after the last day of the LIBOR Period of the Loan to be
continued.  Any Loan or group of Loans
having the same proposed LIBOR Period to be made or continued as, or converted
into, a LIBOR Loan must be in a minimum amount of $5,000,000 and integral
multiples of $500,000 in excess of such amount. 
Any such election must be made by 12:00 p.m. (noon) (New York time)
on the third Business Day prior to (1) the date of any proposed Revolving
Credit Advance which is to bear interest at the LIBOR Rate, (2) the end of
each LIBOR Period with respect to any LIBOR Loans to be continued as such, or (3) the
date on which Borrower wishes to convert any Index Rate Loan to a LIBOR Loan
for a LIBOR Period designated by Borrower in such election.  If no election is received with respect to a
LIBOR Loan by 12:00 p.m. (noon) (New York time) on the third Business Day
prior to the end of the LIBOR Period with respect thereto, that LIBOR Loan
shall be converted to an Index Rate Loan at the end of its LIBOR Period.  Borrower must make such election by notice to
Agent in writing, by fax or overnight courier. 
In the case of any conversion or continuation, such election must be
made pursuant to a written notice (a “Notice of Conversion/Continuation”)
substantially in the form of Exhibit 1.2(e).  No Loan shall be made, converted into or
continued as a LIBOR Loan, if an Event of Default has occurred and is
continuing and Agent or Requisite Lenders have determined not to make or
continue any Loan as a LIBOR Loan as a result thereof.


 


(f)            Notwithstanding
anything to the contrary set forth in this Section 1.2, if a court
of competent jurisdiction determines in a final order that the rate of interest
payable hereunder exceeds the highest rate of interest permissible under law
(the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate
would be so exceeded, the rate of interest payable hereunder shall be equal to
the Maximum Lawful Rate; provided, however, that if at any time
thereafter the rate of interest payable hereunder is less than the Maximum
Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Agent, on behalf
of Lenders, is equal to the total interest that would have been received had
the interest rate payable hereunder been (but for the operation of this
paragraph) the interest rate payable since the Original Closing Date as
otherwise provided in this Agreement. 
Thereafter, interest hereunder shall be paid at the rate or rates of interest
and in the manner provided in Sections 1.2(a) through (e),
unless and until the rate of interest again exceeds the Maximum Lawful Rate,
and at that time this paragraph shall again apply.  In no


 


10





















 


event shall the total interest
received by any Lender pursuant to the terms hereof exceed the amount that such
Lender could lawfully have received had the interest due hereunder been
calculated for the full term hereof at the Maximum Lawful Rate.  If the Maximum Lawful Rate is calculated
pursuant to this paragraph, such interest shall be calculated at a daily rate
equal to the Maximum Lawful Rate divided by the number of days in the year in
which such calculation is made.  If,
notwithstanding the provisions of this Section 1.2(f), a court of
competent jurisdiction shall determine by a final, non-appealable order that a
Lender has received interest hereunder in excess of the Maximum Lawful Rate,
Agent shall, to the extent permitted by applicable law, promptly apply such
excess as specified in Section 1.5(d) and thereafter shall
refund any excess to Borrower or as such court of competent jurisdiction may
otherwise order.


 


1.3           Fees.


 


(a)           Fee
Letter.  Holdings and Borrower shall
pay to GE Capital, individually, the Fees specified in the Agent Fee Letter.


 


(b)           Unused
Line Fee.  As additional compensation
for the Lenders, Borrower shall pay to Agent, for the ratable benefit of such
Lenders, in arrears, on the first Business Day of each month prior to the
Commitment Termination Date and on the Commitment Termination Date, a fee (the “Unused
Line Fee”) for Borrower’s non-use of available funds in an amount equal to
the Applicable Unused Line Fee Margin per annum multiplied by the difference
between (i) the Maximum Amount (as it may be adjusted from time to time)
and (ii) the average for the period of the daily closing balances of the
Revolving Loan (including, without duplication, outstanding Swing Line Loans
and Letter of Credit Obligations) outstanding during the period for which such
Fee is due.


 


(c)           Letter
of Credit Fee.  Borrower agrees to
pay to Agent for the ratable benefit of Lenders, as compensation to such
Lenders for Letter of Credit Obligations incurred hereunder, (i) all
reasonable costs and expenses incurred by Agent or any Lender on account of
such Letter of Credit Obligations, and (ii) for each month during which
any Letter of Credit Obligation shall remain outstanding, a fee (the “Letter
of Credit Fee”) in an amount equal to the Applicable L/C Margin from time
to time in effect multiplied by the maximum amount available from time to time
to be drawn under the applicable Letter of Credit.  Such fee shall be paid to Agent for the
ratable benefit of the Lenders in arrears, on the first Business Day of each month
and on the Commitment Termination Date. 
Borrower shall pay directly to L/C Issuer for its own account a fronting
fee with respect to each Letter of Credit issued by L/C Issuer pursuant to this
Agreement equal to one-eighth of one percent (0.125%) per annum of the daily
maximum amount then available to be drawn under such Letter of Credit.  Such fee shall be paid to L/C Issuer on the
first Business Day of each month and on the Commitment Termination Date.  In addition, Borrower shall pay to any L/C
Issuer, on demand, such fees (including all per annum fees), charges and
expenses of such L/C Issuer in respect of the issuance, negotiation,
acceptance, amendment, transfer and payment of such Letter of Credit or
otherwise payable pursuant to the application and related documentation under
which such Letter of Credit is issued.


 


11





















 


(d)           LIBOR
Breakage Fee.  Upon (i) any
default by Borrower in making any borrowing of, conversion into or continuation
of any LIBOR Loan following Borrower’s delivery to Agent of any LIBOR Loan
request in respect thereof or (ii) any payment of a LIBOR Loan on any day
that is not the last day of the LIBOR Period applicable thereto (regardless of
the source of such prepayment and whether voluntary, by acceleration or
otherwise), Borrower shall pay Agent, for the benefit of all Lenders that
funded or were prepared to fund any such LIBOR Loan, the LIBOR Breakage Fee.


 


(e)           Expenses
and Attorneys’ Fees.  Borrower agrees
to promptly pay all reasonable fees, charges, costs and expenses (including
reasonable attorneys’ fees and expenses of (i) one counsel to the Agent
and the Lenders unless (A) the interests of Agent and Lenders are
sufficiently divergent, in which case one additional counsel may be
appointed or (B) if the interests of any Lender or group of Lenders (other
than all of the Lenders) are distinctly or disproportionately affected,
one additional counsel for such Lender or group of Lenders and (ii) such
other local legal counsel as may be retained by Agent in connection with the
security arrangements contemplated by the Loan Documents) incurred by Agent in
connection with any matters contemplated by or arising out of the Loan
Documents (including the Intercreditor Agreement) or in connection with the
examination, review, due diligence investigation, documentation, negotiation,
closing and syndication of the transactions contemplated herein and in
connection with the continued administration of the Loan Documents (including
the Intercreditor Agreement), including any amendments, modifications, consents
and waivers.  Borrower agrees to promptly
pay reasonable documentation charges assessed by Agent for amendments, waivers,
consents and any of the documentation prepared by Agent’s external legal
counsel or internal legal staff. 
Borrower agrees to promptly pay all fees, charges, costs and expenses
(including fees, charges, costs and expenses of attorneys, auditors (whether
internal or external), appraisers (including with respect to the field audits
and appraisals contemplated by Section 4.1(e)), consultants and
advisors and the allocated cost of internal legal staff) incurred by Agent in
connection with any Event of Default, work-out or action to enforce any Loan
Document (including the Intercreditor Agreement) or to collect any payments due
from Borrower or any other Credit Party. 
In addition, in connection with any work-out or action to enforce any
Loan Document (including the Intercreditor Agreement) or to collect any
payments due from Borrower or any other Credit Party, Borrower agrees to
promptly pay all fees, charges, costs and expenses incurred by Lenders for (i) one
(1) counsel acting for all Lenders other than Agent unless (A) the
interests of the Lenders are sufficiently divergent, in which case
one additional counsel may be appointed or (B) if the interests of
any Lender or group of Lenders (other than all of the Lenders) are distinctly
or disproportionately affected, one additional counsel for such Lender or
group of Lenders and (ii) such other local counsel in each appropriate
jurisdiction as the Agent reasonably determines are necessary or advisable in
connection with the creation, perfection, priority and/or enforcement of the
Liens granted to the Agent for the benefit of the Secured Parties.  All fees, charges, costs and expenses for
which Borrower is responsible under this Section 1.3(e) shall
be deemed part of the Obligations when incurred, payable upon demand or by the
making of a Revolving Credit Advance or Swing Line Advance in accordance with
the final sentence of Section 1.4 and secured by the Collateral.


 


1.4           Payments.  All payments by Borrower of the Obligations
shall be without deduction, defense, setoff or counterclaim and shall be made
in same day funds and delivered to


 


12





















 


Agent, for the benefit of Agent
and the Secured Parties, as applicable, by wire transfer to the following
account or such other place as Agent may from time to time designate in
writing.


 


ABA No. 021-001-033


Account Number 502-707-97


Deutsche Bank Trust Company Americas


New York, New York


Account Name: GECC/ CFI Incoming Funds
Account


Reference: NEFF Rental, Inc.


 


Borrower shall receive credit on the day of receipt for funds received
by Agent by 2:00 p.m. (New York time). 
In the absence of timely receipt, such funds shall be deemed to have
been paid on the next Business Day. 
Whenever any payment to be made hereunder shall be stated to be due on a
day that is not a Business Day, the payment may be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the amount of interest and Fees due hereunder.


 


Borrower hereby authorizes Lenders to make Revolving Credit Advances or
Swing Line Advances, on the basis of their Pro Rata Shares, for the payment of
interest, Fees and expenses, Letter of Credit reimbursement obligations and any
amounts required to be deposited with respect to outstanding Letter of Credit
Obligations pursuant to Section 1.5(f) or Section 6.3.


 


1.5           Prepayments.


 


(a)           Voluntary
Prepayments of Loans.  At any time,
Borrower may prepay the Loans, in whole or in part, without premium or penalty
subject to the payment of LIBOR Breakage Fees, if applicable.  Unless Borrower shall otherwise elect in accordance
with clause (b) below, such prepayment shall not constitute or
result in a reduction of the Revolving Loan Commitments.


 


(b)           Voluntary
Termination and Reduction of Revolving Loan Commitment.  Upon not less than ten (10) Business
Days irrevocable prior written notice to Agent, Borrower may at any time (i) terminate
in whole the Revolving Loan Commitment and on the date specified in such notice
the Revolving Loan Commitment shall terminate and all Obligations shall become
immediately due and payable or (ii) reduce in part ratably the Revolving
Loan Commitments of the Lenders; provided, that each partial reduction
shall be in an aggregate amount of not less than $1,000,000 or an integral
multiple of 500,000 in excess thereof; and provided, further,
that no such partial reduction shall be permitted if, after giving effect to
such reduction, if any, the then outstanding Revolving Loan (including any
outstanding Swing Line Loans and Letter of Credit Obligations) would exceed the
Revolving Loan Commitments unless the Borrower shall have prepaid such
outstanding Loans or shall have provided cash or a standby letter of credit (in
form and substance and from an issuer satisfactory to Agent) as collateral for
such outstanding Letter of Credit Obligations (in an amount equal to 105% of
such outstanding Letter of Credit Obligations) in excess of the Revolving Loan
Commitments then in effect.


 


13





















 


(c)           Mandatory
Prepayments:


 


(i)            Prepayments
from Asset Dispositions.


 


(A)          Except
as otherwise provided in Section 1.5(e) hereof with respect to
insurance and condemnation proceeds and subject to the reinvestment rights
specified in clause (B) below, immediately upon receipt by Holdings
or any of its Subsidiaries of any Net Proceeds in respect of any Asset
Disposition (other than any Asset Disposition consisting of the sale, lease or
rental of Rental Fleet and Equipment in good faith to customers for fair value
in the ordinary course of business) in excess of $1,000,000, individually or in
the aggregate, during any Fiscal Year, Borrower shall repay the Revolving
Credit Advances (without reduction of the Revolving Loan Commitment) by an
amount equal to the amount of any reduction in the Borrowing Base attributable
to the Asset Disposition giving rise to such Net Proceeds to the extent that
any such reduction would result in the outstanding principal balance of the
Revolving Loan exceeding the maximum amount of Revolving Loan permitted to be
outstanding, determined based upon the most recent Borrowing Base Certificate
delivered (or required to be delivered) by Borrower to Agent pursuant to Section 3.7
or Section 4.1(d), as applicable.


 


(B)           Notwithstanding
anything to the contrary in the immediately preceding clause (A),
Borrower or its Subsidiaries may reinvest such Net Proceeds of such Asset
Dispositions, within three hundred sixty five (365) days of receipt thereof
(or, if Borrower or any of its Subsidiaries enters into a contract to reinvest
such Net Proceeds within three hundred sixty five (365) days of the receipt
thereof, within one hundred eighty (180) days of the date of such contract), in
productive replacement assets of a kind then used or usable in the business of
Borrower or such Subsidiaries.  If
Borrower or such Subsidiary does not intend to so reinvest such Net Proceeds or
if the period set forth in the immediately preceding sentence expires without
Borrower or such Subsidiary having reinvested (or entered into a contract to
reinvest) such Net Proceeds in such productive replacement assets, Borrower
shall prepay the Revolving Credit Advances pro rata in an amount equal to such
remaining Net Proceeds of such Asset Disposition.  Such prepayments shall be applied in
accordance with Section 1.5(d).


 


(C)           Notwithstanding
anything to the contrary in the immediately preceding clauses (A) and
(B), in the event that any Credit Party would otherwise be required to
prepay, redeem or otherwise repurchase the Senior Secured Notes, any
Subordinated Indebtedness or any other Indebtedness (other than purchase money
Indebtedness or Capital Leases permitted under Section 3.1(e) but
only to the extent that such Indebtedness is secured by a Lien on the assets or
property subject of the relevant Asset Disposition) with the Net Proceeds of
any such Asset Disposition (whether before or after giving effect to any
reinvestment period as contemplated above), Borrower shall reduce ratably the
Revolving Loan Commitments by an amount equal to the amount of the Net Proceeds
received in respect of such Asset Disposition that would otherwise have been
required to be applied to the prepayment, redemption or other repurchase of the
Senior Secured Notes, such Subordinated Indebtedness or such other
Indebtedness.


 


14





















 


(ii)           Prepayments
from Issuance of Stock.  Immediately
upon the receipt by Holdings or any of its Subsidiaries of the proceeds of the
issuance of Stock (other than (A) proceeds of the issuance of Stock by
Holdings received on or before the Amendment and Restatement Date, (B) proceeds
from the issuance of Stock to officers, directors, employees or members of the
management of Holdings or any other Credit Party, (C) proceeds of the
issuance of Stock to Borrower or any Subsidiary of Borrower and (D) proceeds
of the issuance of Qualified Stock of Holdings solely to the extent such
proceeds are applied to (I) finance Permitted Acquisitions within ninety (90)
days of the issuance of such Stock or (II) refinance any Second Lien Financing
or any Subordinated Indebtedness in accordance with Section 3.18(b) within
sixty (60) days of the issuance of such Stock), the Borrower shall repay the
Loans (without a corresponding reduction of the Revolving Loan Commitments) in
an amount equal to such proceeds, net of underwriting discounts and commissions
and other reasonable costs associated therewith; provided, that in the
event that Holdings has issued any Qualified Stock for purposes of (x)
financing any Permitted Acquisition and the proceeds thereof have not been
applied to so finance such Permitted Acquisition within ninety (90) days of the
issuance thereof, Borrower shall repay the Loans in an amount equal to such
proceeds, net of underwriting discounts and commissions and other reasonable
costs associated therewith, on the ninetieth (90th) day after the issuance
thereof or (y) refinancing any Second Lien Financing or any Subordinated
Indebtedness and the proceeds thereof have not been applied to so refinance
such Indebtedness within sixty (60) days of the issuance thereof, Borrower
shall repay the Loans in an amount equal to such proceeds, net of underwriting
discounts and commissions and other reasonable costs associated therewith, on
the sixtieth (60th) day after the issuance thereof.  Such prepayments shall be applied in
accordance with Section 1.5(d).


 


(iii)          Prepayments
from Issuance of Debt.  Immediately
upon the receipt by Holdings or any of its Subsidiaries of the proceeds of the
issuance of Indebtedness (other than proceeds of the Senior Secured Notes (to
the extent applied to repay the Bridge Loans on the Amendment and Restatement
Date) and other Indebtedness expressly permitted under Section 3.1),
Borrower shall repay the Loans in an amount equal to such proceeds, net of
underwriting discounts and commissions and other reasonable costs associated
therewith.  Such prepayments shall be
applied in accordance with Section 1.5(d).


 


(d)           Application
of Proceeds.  With respect to any
prepayments made by Borrower pursuant to Sections 1.5(a), 1.5(b) or
1.5(c) (other than any amount applied to the Revolving Credit
Advances as a result of the reduction of the Borrowing Base as specified
therein), such prepayments shall be applied as follows: first, to
interest then due and payable on the Swing Line Loan; second, to reduce
the outstanding principal balance of the Swing Line Loan until the same has
been repaid in full; third, to interest then due and payable on
Revolving Credit Advances; and fourth, to the outstanding Revolving
Credit Advances until the same has been repaid in full.  Solely in the case of any prepayment made
pursuant to Sections 1.5(c)(i)(C) or 1.5(c)(iii), such
prepayment shall be made together with a permanent reduction of the Revolving
Loan Commitments (i) in the case any prepayment in respect of any Asset
Disposition, in the amount described in such Section 1.5(c)(i)(C) and
(ii) in the case of any prepayment required by Section 1.5(c)(iii),
unless otherwise agreed to by the Requisite Lenders, in the amount of such
proceeds, net of underwriting discounts and commissions and other reasonable
costs associated with such issuance of Indebtedness; provided, that if,
after giving


 


15





















 


effect to any such permanent
reduction of the Revolving Loan Commitments, the then outstanding Revolving
Loans (including the outstanding Swing Line Loans and Letter of Credit
Obligations) exceeds the Revolving Loan Commitments, Borrower shall promptly
repay the Loans in an amount equal to such excess.  Considering each type of Revolving Loan being
prepaid separately, any such prepayment shall be applied first to Index Rate
Loans before application to LIBOR Loans in a manner which minimizes any
resulting LIBOR Breakage Fee.


 


(e)           Application
of Prepayments from Insurance Proceeds. 
Prepayments from insurance in accordance with Section 2.2 or
condemnation proceeds shall be applied as follows: first, to the Swing
Line Loans and, second, to the Revolving Credit Advances of
Borrower.  Neither the Revolving Loan
Commitment nor the Swing Line Loan Commitment shall be permanently reduced by
the amount of any such prepayments; provided, that in the event that any
Credit Party would otherwise be required to prepay, redeem or otherwise
repurchase the Indebtedness under any Second Lien Financing, any Subordinated
Indebtedness or any other Indebtedness (other than purchase money Indebtedness
or Capital Leases permitted under Section 3.1(e) but only to
the extent that such Indebtedness is secured by a Lien on the assets or
property subject of the relevant Asset Disposition) with the proceeds of such
insurance or such condemnation proceeds (whether before or after giving effect
to any reinvestment period as contemplated in Section 1.5(c)(i) above),
Borrower shall reduce ratably the Revolving Loan Commitments by an amount equal
to the amount of such insurance proceeds or condemnation proceeds received that
would otherwise have been required to be applied to the prepayment, redemption
or other repurchase of the Indebtedness under any such Second Lien Financing,
such Subordinated Indebtedness or such other Indebtedness.


 


(f)            Letter
of Credit Obligations.  In the event
any Letters of Credit are outstanding at the time that the Revolving Loan
Commitment is terminated, Borrower shall (1) deposit with Agent for the
benefit of all Lenders cash in an amount equal to 105% of the aggregate
outstanding Letter of Credit Obligations or provide a standby letter of credit
(in form and substance and from an issuer satisfactory to Agent) in a face
amount equal to 105% of the aggregate outstanding Letter of Credit Obligations,
in each case to be available to Agent to reimburse payments of drafts drawn
under such Letters of Credit and pay any Fees and expenses related thereto and (2) prepay
the fee payable under Section 1.3(c) with respect to such
Letters of Credit for the full remaining terms of such Letters of Credit.  Upon termination of any such Letter of
Credit, the unearned portion of such prepaid fee attributable to such Letter of
Credit shall be refunded to Borrower.


 


1.6           Maturity.  All of the Obligations shall become due and
payable as otherwise set forth herein, but in any event all of the remaining
Obligations (other than contingent indemnification Obligations to the extent no
unsatisfied claim has been asserted) shall become due and payable upon
termination of this Agreement on the Commitment Termination Date or
otherwise.  Until all Obligations have
been fully paid and satisfied (other than contingent indemnification
obligations to the extent no unsatisfied claim has been asserted), the
Revolving Loan Commitment has been terminated and all Letters of Credit have
been terminated or otherwise secured to the satisfaction of Agent, Agent shall
be entitled to retain the security interests in the Collateral granted under
the Collateral Documents and the ability to exercise all rights and remedies
available to Agent and the Secured Parties under the Loan Documents and


 


16





















 


applicable laws.  Notwithstanding anything contained in this
Agreement to the contrary, upon any termination of the Revolving Loan
Commitment, all of the Obligations shall be due and payable.


 


1.7           Eligible Accounts.  All of the Accounts (other than Ineligible
Accounts) owned by Borrower or any Eligible Credit Party and reflected in the
most recent Borrowing Base Certificate delivered by Borrower to Agent shall be “Eligible
Accounts” for purposes of this Agreement. 
Agent shall have the right to establish, modify or eliminate Reserves
against Eligible Accounts from time to time in its reasonable credit judgment
exercised in good faith.  In addition,
Agent reserves the right, at any time and from time to time after the Amendment
and Restatement Date, to adjust any of the criteria set forth below, to
establish new criteria and to adjust advance rates with respect to Eligible
Accounts, in its reasonable credit judgment exercised in good faith, subject to
the approval of Supermajority Lenders in the case of adjustments or new
criteria or changes in advance rates which have the effect of making more
credit available.  Eligible Accounts
shall not include any Account of Borrower or any Eligible Credit Party (each
such Account as to which the exclusionary criteria set forth below applies, an “Ineligible
Account”):


 


(a)           that
does not arise from the sale or lease of goods or the performance of services
by Borrower or such Eligible Credit Party in the ordinary course of its
business;


 


(b)           (i) upon
which the right of Borrower or such Eligible Credit Party to receive payment is
not absolute or is contingent upon the fulfillment of any condition whatsoever
or (ii) as to which Borrower or such Eligible Credit Party is not able to
bring suit or otherwise enforce its remedies against the Account Debtor through
judicial process, or (iii) if the Account represents a progress billing
consisting of an invoice for goods sold or used or services rendered pursuant
to a contract (other than a lease or rental agreement for Rental Fleet and
Equipment in the ordinary course of business) under which the Account Debtor’s
obligation to pay that invoice is subject to Borrower’s or such Eligible Credit
Party’s completion of further performance under such contract or is subject to
the equitable lien of a surety bond issuer;


 


(c)           to
the extent that any defense, counterclaim, setoff or dispute is asserted as to
such Account;


 


(d)           that
is not a true and correct statement of bona fide indebtedness incurred in the
amount of the Account for merchandise sold or leased to or services rendered
and accepted by the applicable Account Debtor;


 


(e)           with
respect to which an invoice, in form and substance reasonably acceptable to
Agent, has not been sent to the applicable Account Debtor; provided,
that it is understood and agreed that the Borrower’s standard form invoice
previously provided to Agent is acceptable;


 


(f)            that
(i) is not owned by Borrower or such Eligible Credit Party or (ii) is
subject to any right, claim, security interest or other interest of any other
Person, other than (A) Liens in favor of Agent, on behalf of itself and
the Secured Parties, (B) Permitted Second


 


17





















 


Priority Liens or (C) Permitted
Liens that are junior in priority to the Liens of the Agent securing the
Obligations;


 


(g)           that
arises from a sale to any director, officer, other employee or Affiliate of any
Credit Party, or to any entity that has any common officer or director with any
Credit Party;


 


(h)           that
is the obligation of an Account Debtor that is the United States government or
a political subdivision thereof, or any state, county or municipality or
department, agency or instrumentality thereof unless Agent, in its sole
discretion, has agreed to the contrary in writing and Borrower or such Eligible
Credit Party, if necessary or desirable, has complied with respect to such
obligation with the Federal Assignment of Claims Act of 1940, or any applicable
state, county or municipal law restricting the assignment thereof with respect
to such obligation;


 


(i)            that
is the obligation of an Account Debtor located (i) in a foreign country
other than Canada unless payment thereof is assured by a letter of credit
assigned and delivered to Agent, satisfactory to Agent as to form, amount and
issuer or (ii) in a state in which Borrower or the applicable Eligible Credit
Party is deemed to be doing business under the laws of such state and which
denies creditors access to its courts in the absence of a qualification to
transact business in such state or of the filing of any reports with such
state, unless Borrower or such Eligible Credit Party has qualified as a foreign
entity authorized to transact business in such state or has filed all required
reports;


 


(j)            to
the extent Borrower or any of its Subsidiaries is liable for goods sold or
services rendered by the applicable Account Debtor to Borrower or any of its
Subsidiaries but only to the extent of the potential offset;


 


(k)           that
arises with respect to goods that are delivered on a bill-and-hold basis,
arises as a result of any consideration consisting of a credit received by
Borrower or any of its Subsidiaries in connection with any Trade-In
Transaction, cash-on-delivery basis or placed on consignment, guaranteed sale
or other terms by reason of which the payment by the Account Debtor is or may
be conditional;


 


(l)            that
is in default; provided, that, without limiting the generality of the
foregoing, an Account shall be deemed in default upon the occurrence of any of
the following:


 


(i)            the
Account is not paid within the earlier of sixty (60) days following its due date
or ninety (90) days following its original invoice date;


 


(ii)           the
Account Debtor obligated upon such Account suspends business, makes a general
assignment for the benefit of creditors or fails to pay its debts generally as
they come due; or


 


(iii)          a
petition is filed by or against any Account Debtor obligated upon such Account
under any bankruptcy law or any other federal, state or foreign (including any
provincial) receivership, insolvency relief or other law or laws for the relief
of debtors;


 


18





















 


(m)          that
is the obligation of an Account Debtor if 50% or more of the Dollar amount of
all Accounts owing by that Account Debtor are ineligible under the other
criteria set forth in this Section 1.7;


 


(n)           as
to which Agent’s Lien thereon, on behalf of itself and Lenders, is not a first
priority perfected Lien;


 


(o)           as
to which any of the representations or warranties in the Loan Documents are
untrue;


 


(p)           to
the extent such Account is evidenced by a judgment, Instrument or Chattel Paper
(other than any Account evidenced by a lease or rental agreement for Rental
Fleet and Equipment unless (i) such Chattel Paper or Instrument is not
required to be delivered to Agent pursuant to the Security Agreement or (ii) if
such Chattel Paper or Instrument is required to be delivered to Agent pursuant
to the Security Agreement, such Chattel Paper or Instrument has been so
delivered);


 


(q)           to
the extent that such Account, together with all other Accounts owing to such
Account Debtor and its Affiliates as of any date of determination exceed 20% of
all Eligible Accounts of Borrower or such Eligible Credit Party except as may
otherwise be agreed to by Agent in its sole discretion;


 


(r)            that
is payable in any currency other than Dollars;


 


(s)           in
the case of any Rental Payment, is not subject to a written lease agreement;


 


(t)            in
the case of any Rental Payment, is not subject to a first priority security
interest in favor of Agent for the benefit of the Secured Parties, perfected by
possession of all Chattel Paper related to such Rental Payment (to the extent
possession of such Chattel Paper is required by the Security Agreement) or by
the filing of a financing statement, which financing statement indicates that a
purchase of or security interest in such chattel paper by or in favor of any
Person other than Agent is in violation of the rights of Agent;


 


(u)           with
respect to which the Borrower or such Eligible Credit Party has made an
agreement with the Account Debtor to extend the time of payment thereof; or


 


(v)           that
represents, in whole or in part, a billing for interest, fees or late charges, provided
that such Account shall be ineligible only to the extent of the amount of such
billing.


 


1.8           Eligible Parts
Inventory.  All of the Parts Inventory
(other than Ineligible Parts Inventory) owned by Borrower or any Eligible
Credit Party and reflected in the most recent Borrowing Base Certificate
delivered by Borrower to Agent shall be “Eligible Parts Inventory” for
purposes of this Agreement.  Agent shall
have the right to establish, modify, or eliminate Reserves against Eligible
Parts Inventory from time to time in its reasonable credit judgment exercised
in good faith.  In addition, Agent
reserves the right, at any time and from time to time


 


19





















 


after the Amendment and
Restatement Date, to adjust any of the criteria set forth below, to establish
new criteria and to adjust advance rates with respect to Eligible Parts
Inventory in its reasonable credit judgment exercised in good faith, subject to
the approval of Supermajority Lenders in the case of adjustments or new
criteria or changes in advance rates which have the effect of making more
credit available.  Eligible Parts
Inventory shall not include any Inventory of Borrower or any Eligible Credit
Party that (any such Parts Inventory as to which any of the exclusionary
criteria set forth below applies, “Ineligible Parts Inventory”):


 


(a)           is
not Parts Inventory;


 


(b)           is
not owned by Borrower or such Eligible Credit Party free and clear of all Liens
and rights of any other Person (including the rights of a purchaser that has
made progress payments and the rights of a surety that has issued a bond to
assure performance by Borrower or such Eligible Credit Party with respect to
that Inventory), except the Liens in favor of Agent, on behalf of itself and
the Secured Parties, the Permitted Second Priority Liens and other Permitted
Liens that are junior in priority to the Liens of Agent securing the Obligations;


 


(c)           (i) is
not located on premises owned, leased or rented by Borrower or such Eligible
Credit Party located in a state of the United States of America or the District
of Columbia that is set forth on Schedule 5.12; (ii) is stored
at a leased location, unless Agent has given its prior consent thereto or
unless (A) a reasonably satisfactory landlord waiver has been delivered to
Agent or (B) a Rent Reserve has been established with respect thereto; or (iii) is
stored with a bailee or warehouseman or is in a processor or converter facility
unless a reasonably satisfactory, acknowledged bailee letter or other agreement
waiving or subordinating all Liens and claims by such Person to the Liens of
Agent or a Rent Reserve has been established with respect thereto;


 


(d)           is
placed on consignment or is in transit, except for Inventory in transit in the
United States of America or the District of Columbia as to which Agent’s Liens
in such Inventory remain perfected without any further action by Agent;


 


(e)           is
covered by a negotiable document of title, unless such document has been
delivered to Agent with all necessary endorsements, free and clear of all Liens
except those in favor of Agent, on behalf of itself and the Secured Parties,
the Permitted Second Priority Liens and other Permitted Liens that are junior
in priority to the Liens of Agent securing the Obligations;


 


(f)            is
excess, obsolete, unsaleable, shopworn, seconds, damaged or unfit for sale;


 


(g)           consists
of display items or packing or shipping materials, manufacturing supplies,
work-in-process Inventory;


 


(h)           consists
of goods which have been returned by the buyer;


 


(i)            is
not held for sale, lease or use in the ordinary course of business of Borrower
or such Eligible Credit Party;


 


20





















 


(j)            is
not subject to a first priority Lien in favor of Agent on behalf of itself and
the Secured Parties, subject to no other Liens, other than the Permitted Second
Priority Liens and Permitted Liens that are junior in priority to the Liens of
the Agent securing the Obligations;


 


(k)           breaches
any of the representations or warranties pertaining to Inventory set forth in
the Loan Documents;


 


(l)            consists
of Hazardous Materials or goods that can be transported or sold only with
licenses that are not readily available;


 


(m)          is
not covered by casualty insurance (subject to customary deductibles);


 


(n)           is
held by Borrower or such Eligible Credit Party under a Vendor Lease; or


 


(o)           is
being leased to a third party as lessee (i) which has commenced a
voluntary case or has consented to the entry of an order for relief in an
involuntary case or to the conversion of an involuntary case to a voluntary
case, under the Bankruptcy Code or (ii) with respect to which a court has
entered a decree or order for relief in an involuntary case under the
Bankruptcy Code.


 


1.9           Eligible
Rental Fleet and Equipment.  All of
the Rental Fleet and Equipment (other than Ineligible Rental Fleet and
Equipment) owned by Borrower or any Eligible Credit Party and reflected in the
most recent Borrowing Base Certificate delivered by Borrower to Agent shall be “Eligible
Rental Fleet and Equipment” for purposes of this Agreement.  Agent shall have the right to establish,
modify, or eliminate Reserves against Eligible Rental Fleet and Equipment from
time to time in its reasonable credit judgment exercised in good faith.  In addition, Agent reserves the right, at any
time and from time to time after the Amendment and Restatement Date, to adjust
any of the criteria set forth below, to establish new criteria and to adjust
advance rates with respect to Eligible Rental Fleet and Equipment in its
reasonable credit judgment exercised in good faith, subject to the approval of
Supermajority Lenders in the case of adjustments or new criteria or changes in
advance rates which have the effect of making more credit available.  Eligible Rental Fleet and Equipment shall not
include any Inventory of Borrower or any Eligible Credit Party that (any such
Rental Fleet and Equipment as to which the exclusionary criteria set forth
below applies, “Ineligible Rental Fleet and Equipment”):


 


(a)           is
not Rental Fleet and Equipment;


 


(b)           is
not classified as “rental equipment, net” on Holdings’ balance sheet;


 


(c)           is
not owned by Borrower or such Eligible Credit Party free and clear of all Liens
(including Lien securing Purchase Money Obligations) and rights of any other
Person (including the rights of a purchaser that has made progress payments and
the rights of a surety that has issued a bond to assure performance by Borrower
or such Eligible Credit Party with respect to that Inventory), except the Liens
in favor of Agent, on behalf of itself and the Secured Parties, the Permitted
Second Priority Liens and other Permitted Liens that are junior in priority to the
Liens of Agent securing the Obligations;


 


21





















 


(d)           (i) is
not (A) located on premises owned, leased or rented by Borrower or such
Eligible Credit Party located in a state of the United States of America or the
District of Columbia that is set forth on Schedule 5.12 or (B) being
leased by a customer of Borrower or such Eligible Credit Party and used by such
customer at a location of such customer in a state of the United States of
America or the District of Columbia pursuant to the terms of a rental agreement
entered into between such customer and Borrower or the applicable Eligible
Credit Party; (ii) is stored at a leased location, unless Agent has given
its prior consent thereto or unless (A) a reasonably satisfactory landlord
waiver has been delivered to Agent or (B) a Rent Reserve has been
established with respect thereto; or (iii) is stored with a bailee or
warehouseman or is in a processor or converter facility unless a reasonably
satisfactory, acknowledged bailee letter or other agreement waiving or
subordinating all Liens and claims by such Person to the Liens of Agent or a
Rent Reserve has been established with respect thereto;


 


(e)           is
placed on consignment or is in transit, except for Rental Fleet and Equipment
in transit in the United States of America or the District of Columbia as to
which Agent’s Liens in such Inventory remain perfected without any further
action by Agent;


 


(f)            is
covered by a negotiable document of title, unless such document has been
delivered to Agent with all necessary endorsements, free and clear of all Liens
except those in favor of Agent and the Secured Parties, the Permitted Second
Priority Liens and Permitted Liens that are junior in priority to the Liens of
the Agent securing the Obligations;


 


(g)           is
excess, obsolete, unsaleable, shopworn, seconds, damaged or unfit for sale;


 


(h)           is
not held for sale, lease or use in the ordinary course of business of Borrower
or such Eligible Credit Party;


 


(i)            is
not subject to a first priority Lien in favor of Agent on behalf of itself and
the Secured Parties, subject to no other Liens, other than the Permitted Second
Priority Liens and Permitted Liens that are junior in priority to the Liens of
the Agent securing the Obligations;


 


(j)            breaches
any of the representations or warranties pertaining to Rental Fleet and
Equipment set forth in the Loan Documents;


 


(k)           consists
of Hazardous Materials or goods that can be transported or sold only with
licenses that are not readily available;


 


(l)            is
not covered by casualty insurance (subject to customary deductibles);


 


(m)          is
held by Borrower or such Eligible Credit Party under a Vendor Lease or any
other lease where a Credit Party is a lessee; or


 


(n)           is
being leased to a third party as lessee (i) which has commenced a
voluntary case or has consented to the entry of an order for relief in an
involuntary case or to the conversion of an involuntary case to a voluntary
case, under the Bankruptcy Code or (ii) with


 


22





















 


respect to which a court has
entered a decree or order for relief in an involuntary case under the
Bankruptcy Code.


 


1.10         Loan Accounts.  Agent shall maintain a loan account (the “Loan
Account”) on its books to record: 
all Advances, all payments made by Borrower, and all other debits and
credits as provided in this Agreement with respect to the Loans or any other
Obligations.  All entries in the Loan
Account shall be made in accordance with Agent’s customary accounting practices
as in effect from time to time.  The
balance in the Loan Account, as recorded on Agent’s most recent printout or
other written statement, shall, absent manifest error, be presumptive evidence
of the amounts due and owing to Agent and Lenders by Borrower; provided
that any failure to so record or any error in so recording shall not limit or
otherwise affect Borrower’s duty to pay the Obligations.  Agent shall render to Borrower a monthly
accounting of transactions with respect to the Loans setting forth the balance
of the Loan Account as to Borrower for the immediately preceding month.  Unless Borrower notifies Agent in writing of
any objection to any such accounting (specifically describing the basis for
such objection), within sixty (60) days after the date thereof, each and every
such accounting shall, absent manifest error, be deemed final, binding and
conclusive on Borrower in all respects as to all matters reflected
therein.  Only those items expressly
objected to in such notice shall be deemed to be disputed by Borrower.  Notwithstanding any provision herein
contained to the contrary, any Lender may elect (which election may be revoked)
to dispense with the issuance of Notes to that Lender and may rely on the Loan
Account as evidence of the amount of Obligations from time to time owing to it.


 


1.11         Yield
Protection; Illegality.


 


(a)           Capital
Adequacy and Other Adjustments.  In
the event that any Lender shall have reasonably determined that the adoption
after the date hereof of any law, treaty, governmental (or quasi-governmental)
rule, regulation, guideline or order regarding capital adequacy, reserve
requirements or similar requirements or compliance by any Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy, reserve requirements or similar requirements (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) from any central bank or governmental agency or body having
jurisdiction does or shall have the effect of increasing the amount of capital,
reserves or other funds required to be maintained by such Lender or any
corporation controlling such Lender and thereby reducing the rate of return on
such Lender’s or such corporation’s capital as a consequence of its obligations
hereunder, then Borrower shall from time to time within fifteen (15) days after
notice and demand from such Lender (together with the certificate referred to
in the next sentence and with a copy to Agent) pay to Agent, for the account of
such Lender, additional amounts sufficient to compensate such Lender for such
reduction; provided, however, that Borrower shall not be required
to compensate any Lender pursuant to this paragraph for any amounts incurred
more than 180 days prior to the date that such Lender notifies Borrower of such
Lender’s intention to claim compensation therefor, and provided, further,
that if the circumstances giving rise to such claim have a retroactive effect,
then such 180-day period shall be extended to include the period of such
retroactive effect.  A certificate as to
the amount of such cost and showing the basis of the computation of such cost
submitted by such Lender to Borrower and Agent shall, absent manifest error, be
final, conclusive and binding for all purposes.


 


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(b)           Increased
LIBOR Funding Costs; Illegality. 
Notwithstanding anything to the contrary contained herein, if the
introduction of or any change in any law, rule, regulation, treaty or directive
(or any change in the interpretation thereof) shall make it unlawful, or any
central bank or other Governmental Authority shall assert that it is unlawful,
for any Lender to agree to make or to make or to continue to fund or maintain
any LIBOR Loan, then, unless that Lender is able to make or to continue to fund
or to maintain such LIBOR Loan at another branch or office of that Lender
without, in that Lender’s opinion, adversely affecting it or its Loans or the
income obtained therefrom, on notice thereof and demand therefor by such Lender
to Borrower through Agent, (i) the obligation of such Lender to agree to
make or to make or to continue to fund or maintain LIBOR Loans shall terminate
and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR
Loans owing by Borrower to such Lender, together with interest accrued thereon,
unless Borrower, within five (5) Business Days after the delivery of such
notice and demand, converts all LIBOR Loans into Index Rate Loans.  If, after the Amendment and Restatement Date,
the introduction of, change in or interpretation of any law, rule, regulation,
treaty or directive would impose or increase reserve requirements (other than
as taken into account in the definition of LIBOR) or otherwise increase the
cost (except for any taxes that are neither Excluded Taxes or Other Taxes) to
any Lender of making or maintaining a LIBOR Loan, then Borrower shall from time
to time within fifteen (15) days after notice and demand from Agent to Borrower
(together with the certificate referred to in the next sentence) pay to Agent,
for the account of all such affected Lenders, additional amounts sufficient to
compensate such Lenders on an after tax basis for such increased cost; provided,
however, that Borrower shall not be required to compensate any Lender
pursuant to this paragraph for any amounts incurred more than 180 days prior to
the date that such Lender notifies Borrower of such Lender’s intention to claim
compensation therefor, and provided, further, that if the
circumstances giving rise to such claim have a retroactive effect, then such 180-day
period shall be extended to include the period of such retroactive effect.  A certificate as to the amount of such cost
and showing the basis of the computation of such cost submitted by Agent on behalf
of all such affected Lenders to Borrower shall, absent manifest error, be
final, conclusive and binding for all purposes.


 


1.12         Taxes.


 


(a)           No
Deductions.  Subject to the
immediately succeeding sentences and Section 1.12(e) below,
any and all payments or reimbursements made hereunder, under the Notes or under
any other Loan Document shall be made free and clear of and without deduction
for any and all Charges, taxes, levies, imposts, deductions or withholdings,
and all liabilities with respect thereto of any nature whatsoever imposed by
any taxing authority, excluding such Charges, taxes, levies, imposts,
deductions or withholdings to the extent imposed on Agent’s or a Lender’s net
income (including franchise taxes, capital taxes, minimum taxes and other taxes
imposed in lieu of net income taxes) by the jurisdiction in which Agent or such
Lender is organized or is engaged in business (including the jurisdiction in
which a lending office is located) or other charges, taxes, levies, imposts,
deductions or withholdings imposed on an Agent or Lender as a result of a
present connection between the Lender or Agent and the jurisdiction of a taxing
authority (other than any connection arising solely from having executed,
delivered or performed its obligation or received any payments hereunder or any
other Loan Document) (“Excluded Taxes”). 
Except as otherwise provided in this Section 1.12, if any
Credit Party shall be required


 


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by current or future law to
deduct any such amounts from or in respect of any sum payable hereunder or
under any other Loan Document to any Lender or Agent, then the sum payable
hereunder shall be increased as may be necessary so that, after making all
required deductions, such Lender or Agent receives an amount equal to the sum
it would have received had no such deductions been made.  All required deductions shall be complied
with and paid over to the relevant taxing authority or other Governmental Authority
in accordance with applicable law. 
Notwithstanding anything to the contrary, no Credit Party shall have any
obligation to increase the sum payable hereunder or under any other Loan
Document (or pay additional amounts) pursuant to this Section 1.12(a) with
respect to any taxes, deductions or withholdings that are in effect and would
apply to a payment hereunder or under any other Loan Document made to any
Lender that are (i) required by any applicable law in effect when such
Person became a Lender or (ii) applicable after such Lender changes its
applicable lending office to an office outside the United States as of the date
of such change of the applicable lending office.


 


(b)           Changes
in Laws.  In the event that,
subsequent to the Amendment and Restatement Date, any changes in any existing
law, regulation, treaty or directive or in the interpretation or application
thereof or any new law, regulation, treaty or directive enacted or any
interpretation or application thereof:


 


(i)            does
or shall subject Agent or any Lender to any tax of any kind whatsoever with
respect to this Agreement, the other Loan Documents or any Loans made or
Letters of Credit issued hereunder, or change the basis of taxation of payments
to Agent or such Lender of principal, fees, interest or any other amount
payable hereunder (except, in each case, for Excluded Taxes and any changes
with respect thereto and taxes that are covered by Section 1.12(a),
1.12(f) or 1.12(g)); or


 


(ii)           does
or shall impose on Agent or any Lender any other condition or increased cost in
connection with the transactions contemplated hereby or participations herein;


 


and the result of any of the foregoing is to increase the cost to Agent
or any such Lender of issuing any Letter of Credit or making or continuing any
Loan hereunder, as the case may be, or to reduce any amount receivable
hereunder or under any Loan Document, then, in any such case, subject to Section 1.12(c) below
and without duplication, Borrower shall promptly pay to Agent or such Lender,
upon its demand, any additional amounts necessary to compensate Agent or such
Lender, on an after-tax basis, for such additional cost or reduced amount
receivable, as determined by Agent or such Lender with respect to this
Agreement or the other Loan Documents. 
If Agent or such Lender becomes entitled to claim any additional amounts
pursuant to this Section 1.12(b), it shall promptly notify Borrower
of the event by reason of which Agent or such Lender has become so
entitled.  A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by
Agent or such Lender to Borrower (with a copy to Agent) shall, absent manifest
error, be final, conclusive and binding for all purposes.


 


(c)           Tax
Certificate.  Prior to becoming a
Lender under this Agreement and on or before a previously delivered Certificate
of Exemption (defined below) expires or becomes inapplicable or obsolete, other
than by reason of a change in the applicable rules as in effect at


 


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the time the Lender becomes a
Lender under this Agreement, each Lender organized under the laws of a
jurisdiction outside the United States (a “Foreign Lender”) shall
provide to Borrower and Agent (i) a properly completed and executed IRS Form W-8BEN
(claiming a complete exemption or a reduction under an applicable treaty) or Form W-8ECI
plus any additional form, certificate or document or a successor form
prescribed by the IRS of the United States, certifying as to such Foreign
Lender’s entitlement to a complete exemption from or a reduction in United
States federal withholding tax under the applicable rules as in effect at
the time the Lender becomes a Lender under this Agreement with respect to
payments to be made to such Foreign Lender under this Agreement and under the
Notes, or (ii) in the case of a Foreign Lender that is not a “bank”
(within the meaning of Section 881(c)(3)(A) of the IRC), cannot claim
an exemption under any applicable treaty and meets the qualifications under the
“portfolio interest” exemption rules, a properly completed and executed IRS Form W-8BEN
and a written certificate to the effect that such Foreign Lender is eligible
for a complete exemption under the applicable rules as in effect at the
time the Lender becomes a Lender under this Agreement under Section 871(h) or
881(c) of the IRC (in each case, a “Certificate of Exemption”).  Notwithstanding anything to the contrary, if
a Foreign Lender is unable to provide or does not provide a Certificate of
Exemption to Borrower and Agent claiming a complete exemption from United
States withholding tax within the time periods set forth in the preceding
sentence, other than by reason of a change in the applicable rules as in
effect at the time the Lender becomes a Lender under this Agreement, Credit
Parties shall withhold taxes from payments to such Foreign Lender at the
applicable statutory and treaty rates (taking into account such Foreign Lender’s
compliance with applicable certification requirements), and the Credit Parties
shall not be required to pay any additional amounts under Section 1.12(a) as
a result of such withholding, provided, that such withholding shall
cease (or be reduced to the applicable treaty rate) upon delivery by such
Foreign Lender of a Certificate of Exemption to Borrower and Agent and provided,
further, that Credit Parties shall be required to pay additional amounts
under Section 1.12(a) in respect of any additional taxes
withheld in excess of the initial rate of United States federal withholding tax
indicated in the initial Certificate of Exemption by reason of a change in the
applicable rules as in effect at the time the Foreign Lender becomes a
Lender under this Agreement.  In
addition, each Lender shall from time to time, upon the reasonable written
request of any Credit Party or Agent, provide other certificates or forms that
are necessary in order for payments made hereunder or under the Notes to be
qualified for an exemption from, or a reduction in, withholding taxes or
deductions.


 


(d)           If
a Credit Party is required to increase the sum payable hereunder (or pay
additional amounts) to any Lender or Agent pursuant to this Section 1.12,
such Lender or Agent shall, at the request of the Credit Party, change the
jurisdiction of its applicable lending office if such change (i) will
eliminate or reduce any such increase in the payment obligation (or additional
amounts) and (ii) is, in such Lender’s reasonable judgment, determined not
to be materially disadvantageous to such Lender.


 


(e)           To
the extent any Lender is able (as determined by such Lender in its reasonable
judgment) to apply or otherwise take advantage of any tax credit or refund in
conjunction with any taxes, deductions or withholdings which give rise to an
obligation of any Credit Party to pay an increased sum or additional amounts
pursuant to this Section 1.12, such


 


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Lender shall pay the amount of
such tax credit or refund (net of any expenses) to such Credit Party.


 


(f)            In
addition, the Credit Parties agree to pay any current or future stamp or
documentary taxes or any other excise or property taxes, charges, assessments
or similar levies (excluding, for avoidance of doubt, any Excluded Taxes) that
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, the other Loan
Documents or any Loans made or Letters of Credit issued hereunder (“Other
Taxes”).


 


(g)           Each
Credit Party agrees to indemnify each Lender and Agent for the full amount of
non-Excluded Taxes and Other Taxes paid by such Lender or Agent, as the case
may be, and any liability (including penalties, interest and expenses other
than penalties, interest and expenses resulting from the Lender’s gross
negligence or willful misconduct) arising therefrom or with respect
thereto.  Such indemnification shall be
made within thirty (30) days after the date any Lender or Agent, as the case
may be, makes written demand therefor. 
Notwithstanding the foregoing, the Credit Parties shall not be required
to provide any indemnity pursuant to the preceding sentence with respect to
taxes, deductions or withholdings (and any liability relating thereto) for
which the Credit Parties would have no obligation to increase the sum payable
hereunder (or pay additional amounts) pursuant to Section 1.12(a) or
1.12(c).


 


(h)           Within
thirty (30) days after the date of any payment of non-Excluded Taxes or Other
Taxes described in Section 1.12(f) above withheld by a Credit
Party in respect of any payment to any Lender (or Assignee Lender) or Agent,
the Credit Party will furnish to Agent, at its address for notices specified in
Section 9.3 hereof, the original or a copy of any available receipt
evidencing payment thereof.


 


SECTION 2.

AFFIRMATIVE COVENANTS


 


Each Credit Party executing this Agreement
jointly and severally agrees as to all Credit Parties that from and after the
date hereof and until the Termination Date:


 


2.1           Compliance With Laws
and Contractual Obligations.  Each
Credit Party will (a) comply with and shall cause each of its Subsidiaries
to comply with (i) the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority (including, without
limitation, laws, rules, regulations and orders relating to taxes, employer and
employee contributions, securities, employee retirement and welfare benefits,
environmental protection matters and employee health and safety) as now in
effect and which may be imposed in the future in all jurisdictions in which any
Credit Party or any of its Subsidiaries is now doing business or may hereafter
be doing business and (ii) the obligations, covenants and conditions
contained in all Contractual Obligations of such Credit Party or any of its
Subsidiaries other than those laws, rules, regulations, orders and provisions
of such Contractual Obligations the noncompliance with which could not be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect and except for Contractual Obligations being diligently
contested in good faith, and (b) maintain or obtain and shall cause each
of its Subsidiaries to


 


27





















 


maintain or obtain all
licenses, qualifications and permits now held or hereafter required to be held
by such Credit Party or any of its Subsidiaries, for which the loss,
suspension, revocation or failure to obtain or renew, could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.  This Section 2.1
shall not preclude any Credit Party or its Subsidiaries from contesting any
taxes or other payments, if they are being diligently contested in good faith
in a manner which stays enforcement thereof and if appropriate expense
provisions have been recorded in conformity with GAAP, subject in the case of any
Lien in connection therewith, to the terms and conditions of Section 3.2.  Each Credit Party represents and warrants
that it (i) is in compliance and each of its Subsidiaries is in compliance
with the requirements of all applicable laws, rules, regulations and orders of
any Governmental Authority and the obligations, covenants and conditions
contained in all Contractual Obligations other than those laws, rules,
regulations, orders and provisions of such Contractual Obligations the
noncompliance with which could not be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect, and (ii) maintains
and each of its Subsidiaries maintains all licenses, qualifications and permits
referred to above other than those licenses, qualifications and permits the
failure of which to maintain could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.


 


2.2           Insurance;
Damage to or Destruction of Collateral.


 


(a)           The
Credit Parties shall, at their sole cost and expense, maintain with financially
sound and reputable insurance companies, insurance on all their property in at
least such amounts and against at least such risks (but including in any event
public liability coverage) as are usually insured against in the same general
area by companies engaged in the same or a similar business; provided,
notwithstanding any industry standard, any amount of self insurance shall be
commercially reasonable and must be reasonably satisfactory to Agent.  Such policies of insurance shall contain
provisions pursuant to which the insurer agrees to (i) name Agent, for its
benefit and the benefit of the Secured Parties, as additional insured, (ii) in
the case of all property insurance policies, name the Agent as loss payee, (iii) in
the case of all property insurance policies, provide a breach of warranty in
favor of Agent and the Secured Parties, (iv) provide for a waiver of
subrogation in favor of Agent and the Secured Parties and (v) provide 30
days prior written notice to Agent in the event of any non-renewal,
cancellation or amendment of any such insurance policy.  If any Credit Party at any time or times
hereafter shall fail to obtain or maintain any of the policies of insurance
required above or to pay all premiums relating thereto, Agent may at any time
or times thereafter obtain and maintain such policies of insurance and pay such
premiums and take any other action with respect thereto that Agent deems
advisable.  Agent shall have no
obligation to obtain insurance for any Credit Party or pay any premiums
therefor.  By doing so, Agent shall not
be deemed to have waived any Default or Event of Default arising from any
Credit Party’s failure to maintain such insurance or pay any premiums
therefor.  All sums so disbursed,
including reasonable attorneys’ fees, court costs and other charges related
thereto, shall be payable on demand by Borrower to Agent and shall be
additional Obligations hereunder secured by the Collateral.


 


(b)           Agent
reserves the right at any time upon any change in any Credit Party’s risk
profile (as determined by Agent in its reasonable credit judgment and including
any change in the product mix maintained by any Credit Party or any laws
affecting the potential liability of


 


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such Credit Party) to require
additional forms and limits of insurance to, in Agent’s reasonable credit
judgment, adequately protect both Agent’s and the Secured Parties’ interests in
all or any portion of the Collateral. 
Upon the reasonable request of Agent, each Credit Party shall deliver to
Agent from time to time a report of a reputable insurance broker, reasonably
satisfactory to Agent, with respect to its insurance policies.


 


(c)           Each
Credit Party shall deliver to Agent, at the time of the applicable policy
renewal, in form and substance reasonably satisfactory to Agent, certificates
of insurance evidencing (i) all “All Risk” policies naming Agent, on
behalf of itself and the Secured Parties, as additional insured and loss payee,
with a breach of warranty in favor of Agent and the Secured Parties, (ii) all
general liability and other liability policies naming Agent, for the benefit of
itself and the Secured Parties, as additional insured and (iii) waiver of
subrogation and thirty (30) days notice of cancellation for all insurance
policies.  Each Credit Party irrevocably
makes, constitutes and appoints Agent (and all officers, employees or agents
designated by Agent), so long as any Default or Event of Default has occurred
and is continuing or the anticipated insurance proceeds exceed $5,000,000, as
each Credit Party’s true and lawful agent and attorney-in-fact for the purpose
of making, settling and adjusting claims under such “All Risk” policies of
insurance, endorsing the name of each Credit Party on any check or other item
of payment for the proceeds of such “All Risk” policies of insurance and for
making all determinations and decisions with respect to such “All Risk”
policies of insurance.  Agent shall have
no duty to exercise any rights or powers granted to it pursuant to the
foregoing power-of-attorney.  Borrower
shall promptly notify Agent of any loss, damage, or destruction to the
Collateral in the amount of $1,000,000 or more, whether or not covered by
insurance.  After deducting from any
insurance proceeds the expenses, if any, incurred by Agent in the collection or
handling thereof, Agent may, at its option, apply such proceeds to the
reduction of the Obligations in accordance with Section 1.5(e), provided
that in the case of insurance proceeds pertaining to any Credit Party other
than a Borrower, such insurance proceeds shall be applied as if Borrower owned
the property that generated such proceeds. 
Notwithstanding the foregoing, if the casualty giving rise to such
insurance proceeds could not reasonably be expected to have a Material Adverse
Effect and such insurance proceeds do not exceed $5,000,000 in the aggregate,
Agent shall permit the applicable Credit Party to replace, restore, repair or
rebuild the property; provided that if such Credit Party has not
completed or entered into binding agreements to complete such replacement,
restoration, repair or rebuilding within three hundred sixty five (365) days of
such casualty, Agent may apply such insurance proceeds to the Obligations in
accordance with Section 1.5(e); provided, further,
that in the case of insurance proceeds pertaining to any Credit Party other
than Borrower, such insurance proceeds shall be applied to the Loans owing by
Borrower.


 


2.3           Inspection;
Lender Meeting.


 


(a)           Each
Credit Party shall permit any authorized representatives of Agent to visit,
audit and inspect any of the properties of such Credit Party and its
Subsidiaries, including its and their financial and accounting records, and to
make copies and take extracts therefrom, and to discuss its and their affairs,
finances and business with its and their officers and certified public
accountants, at such reasonable times during normal business hours and, so long
as no Event of Default shall have occurred and be continuing, upon reasonable
notice to the applicable Credit Party, and as often as may be reasonably
requested.  Representatives of each
Lender will


 


29





















 


be permitted to accompany
representatives of Agent during each visit, inspection and discussion referred
to in the immediately preceding sentence, at the expense of such Lender or,
following an Event of Default, at the expense of such Credit Party.


 


(b)           Without
in any way limiting the foregoing clause (a), each Credit Party will
participate and will cause key management personnel of each Credit Party and
its Subsidiaries to participate in a meeting with Agent and Lenders once during
each year (or, if (i) an Event of Default shall have occurred or be
continuing or (ii) Borrowing Availability shall be less than $10,000,000,
more frequently as Agent may request), which meeting shall be held at such time
and such place as may be reasonably requested by Agent.


 


2.4           Organizational
Existence.  Except as otherwise
permitted by Section 3.6, each Credit Party will and will cause its
Subsidiaries to at all times preserve and keep in full force and effect its
organizational existence and all rights and franchises material to its
business.


 


2.5           Environmental
Matters.  Each Credit Party shall and
shall cause each Person within its control to: (a) conduct its operations
and keep and maintain its Real Estate in compliance with all Environmental Laws
and Environmental Permits other than noncompliance that could not reasonably be
expected to have a Material Adverse Effect; (b) implement any and all
investigation, remediation, removal and response actions that are appropriate
or reasonably necessary to maintain the value and marketability of the Real
Estate or to otherwise comply with Environmental Laws and Environmental Permits
pertaining to the presence, generation, treatment, storage, use, disposal,
transportation or Release of any Hazardous Material on, at, in, under, above,
to, from or about any of its Real Estate; (c) notify Agent promptly after
such Credit Party or any Person within its control becomes aware of any
violation of Environmental Laws or Environmental Permits or any Release on, at,
in, under, above, to, from or about any Real Estate that is reasonably likely
to result in Environmental Liabilities to a Credit Party or its Subsidiaries in
excess of $1,000,000; and (d) provide Agent on a quarterly basis (together
with the delivery of the Financial Statements delivered pursuant to Section 4.1
for each month that coincides with the end of any Fiscal Quarter) with a
written report of the status of any such violation or Release or any other
matter relating to any Environmental Laws or Environmental Permits that could
reasonably be expected to result in Environmental Liabilities in excess of
$1,000,000 in each case, whether or not the Environmental Protection Agency or
any other Governmental Authority has taken or threatened any action in
connection with any such violation, Release or other matter, which report shall
be in reasonable detail and in form and substance satisfactory to Agent and
shall identify each material order, notice, request for information or any
communication or report received by such Credit Party or any Person within its
control in connection with such matter; provided, that upon request of
Agent, such Credit Party agrees to deliver (or cause to be delivered) a copy of
such order, notice, request for information or other communication or
report.  If Agent at any time has a
reasonable basis to believe that there may be a violation of any Environmental
Laws or Environmental Permits by any Credit Party or any Person under its
control or any Environmental Liability arising thereunder, or a Release of
Hazardous Materials on, at, in, under, above, to, from or about any of its Real
Estate, that, in each case, could reasonably be expected to have a Material
Adverse Effect, then each Credit Party and its Subsidiaries shall, upon Agent’s
written request cause the performance of such environmental audits reasonably
necessary to evaluate the alleged noncompliance or Release (which may


 


30





















 


include subsurface sampling of
soil and groundwater) and preparation of such environmental reports, at
Borrower’s expense, as Agent may from time to time reasonably request, which
shall be conducted by reputable environmental consulting firms reasonably
acceptable to Agent and shall be in form and substance reasonably acceptable to
Agent.  If an environmental audit requested
by Agent pursuant to the preceding sentience is not initiated within thirty
(30) days following receipt of Agent’s request therefor, then each Credit Party
ant its Subsidiaries shall permit Agent or its representatives to have access
to the parcel of Real Estate where the alleged violation or Release occurred
for the purpose of conducting such environmental audits and testing; provided,
that any such environmental audit or testing shall be conducted in such a
manner as to minimize interference with the conduct of the Credit Parties’
operations and Agent shall use commercially reasonable efforts to conduct such
environmental audit or testing in such a manner that would not result in a
material violation of the covenants in any lease relating to such Real
Estate.  Borrower shall reimburse Agent
for the costs of such audits and tests and the same will constitute a part of
the Obligations secured hereunder.


 


2.6           Landlords’
Agreements, Mortgagee Agreements, Bailee Letters and Real Estate Purchases.


 


(a)           Each
Credit Party shall use commercially reasonable efforts to obtain a landlord’s
waiver and consent agreement, mortgagee agreement or bailee letter, as
applicable, from the lessor of each leased property, mortgagee of owned
property or bailee with respect to any warehouse, processor or converter
facility or other location where Collateral is stored or located, which
agreement or letter shall contain a waiver or subordination of all Liens or
claims that the landlord, mortgagee or bailee may assert against the Collateral
at that location (provided, that the landlord’s waiver and consent
agreement may provide that upon the maturity of the term of the lease in the
ordinary course, the landlord shall be entitled, in accordance with the terms
of the applicable lease, to retain any Collateral which, but for the applicable
landlord’s waiver and consent agreement, would have been deemed to be a
fixture), and shall otherwise be reasonably satisfactory in form and substance
to Agent.  With respect to such locations
or warehouse space leased or owned as of the Original Closing Date and
thereafter, if Agent has not received a landlord’s agreement or mortgagee
agreement or bailee letter as of the Original Closing Date or, if later, as of
the date such location is acquired or leased (or such later date as may be
agreed to by Agent in its sole discretion), the Collateral at that location
shall, in Agent’s reasonable credit judgment, be subject to a Rent Reserve.


 


(b)           If
after the Original Closing Date, any Credit Party or any of its Subsidiaries (i) enters
into a lease for real property or warehouse space or (ii) establishes
arrangements or enters into Contractual Obligations pursuant to which Parts
Inventory or Rental Fleet and Equipment shall be shipped to a processor or
converter, such Credit Party or Subsidiary, as the case may be, shall use
commercially reasonable efforts to cause a landlord’s waiver and consent
agreement or bailee letter, as appropriate, to be obtained with respect to such
location in form and substance reasonably satisfactory to Agent; provided,
that unless and until such time as such landlord’s waiver and consent agreement
or bailee letter, as appropriate, shall be obtained and delivered to Agent,
each of the Credit Parties agrees that Agent shall be permitted (i) in the
case of any leased real property, to establish a Rent Reserve in respect of
such location and (ii) in the case of Parts Inventory or Rental Fleet and
Equipment located at any


 


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warehouse facility or shipped
to any processor or converter, to exclude such Parts Inventory or Rental Fleet
and Equipment from the Borrowing Base. 
Each Credit Party shall and shall cause its Subsidiaries to timely and
fully pay and perform their obligations under all leases and other agreements
with respect to each leased location or public warehouse where any Parts
Inventory or Rental Fleet and Equipment is or may be located.


 


2.7           Conduct of Business.  Each Credit Party shall at all times
maintain, preserve and protect all of its assets and properties used or useful
in the conduct of its business, and keep the same in good repair, working order
and condition in all material respects (taking into consideration ordinary wear
and tear) and from time to time make, or cause to be made, all necessary or
appropriate repairs, replacements and improvements thereto consistent with
industry practices; and transact business only in such corporate and trade
names as are set forth in Schedule 2.7.


 


2.8           Further Assurances.


 


(a)           Borrower
and each Guarantor shall, from time to time, execute such guaranties, financing
statements, documents, security agreements and reports as Agent at any time may
reasonably request to evidence, perfect or otherwise implement the guaranties
and security for repayment of the Obligations contemplated by the Loan
Documents and the Related Swap Contracts. 
Without limiting the foregoing, promptly upon granting a Lien to secure
any Second Lien Financing on any assets or property of a Credit Party that does
not constitute Collateral for the Obligations, Holdings and Borrower shall, or
shall cause the relevant Credit Party to, grant a Lien on such assets or
property to Agent for the benefit of the Secured Parties.


 


(b)           In
the event Borrower or any Guarantor acquires an interest in real property after
the Original Closing Date with a recently appraised fair market value in excess
of $2,500,000, within ninety (90) days of the acquisition thereof (or such
later date as may be agreed to by Agent) such Person shall deliver to Agent a
fully executed mortgage or deed of trust over such real property in form and
substance satisfactory to Agent, together with such title insurance policies,
surveys, appraisals, evidence of insurance, legal opinions, environmental
assessments and other documents and certificates as shall be required by Agent.


 


(c)           Borrower
and each other Credit Party shall (i) cause each Person, upon its becoming
a Subsidiary of Borrower (provided that this shall not be construed to
constitute consent by any of the Lenders to any transaction referred to above
which is prohibited by the terms of this Agreement), promptly, in the event
that such Subsidiary is a Domestic Subsidiary or, to the extent that no adverse
tax consequences to the Borrower or violation of applicable law would result
therefrom, a Foreign Subsidiary, to execute and deliver to Agent a Joinder
Agreement and (A) become party to this Agreement as a Credit Party
pursuant to such Joinder Agreement, (B) to guaranty the Obligations and to
become party to the Guaranty (pursuant to a Guaranty Supplement) and (C) to
grant to Agent, for the benefit of Agent and the Secured Parties, a security
interest in the real, personal and mixed property of such Person to secure the
Obligations and to become party to the Security Agreement and the Pledge
Agreement, as applicable, in each case by executing and delivering a Joinder
Agreement to Agent and (ii) pledge, or cause to be pledged, to Agent (A) all
of the Stock of such Subsidiary (if such


 


32





















 


Subsidiary is a Domestic
Subsidiary), (B) 65% of the Stock of such Subsidiary (if such Subsidiary
is a Foreign Subsidiary directly owned by Borrower or by a Domestic Subsidiary)
or (C) 100% of the Stock of such Subsidiary (if such Subsidiary is a
Foreign Subsidiary that is owned by a Foreign Subsidiary that is a Subsidiary
Guarantor), in each case, to secure the Obligations.  The documentation required pursuant to the
foregoing sentence shall be accompanied by such certificates, legal opinions
and other documents as may be reasonably requested by Agent.


 


(d)           After
the acquisition by Borrower or any of its Subsidiaries of assets or personal
property of the type that would have constituted Collateral on the Amendment
and Restatement Date, including investments of the type that would have
constituted Collateral on the Amendment and Restatement Date, Borrower will
take, or will cause their Subsidiaries to take, all necessary action, including
(i) the filing of appropriate financing statements under the applicable
provisions of the Code, applicable foreign, domestic or local laws, rules or
regulations in each of the offices where such filing is necessary or
appropriate, (ii) the execution and delivery of Control Agreements and (iii) to
the extent required by the Security Agreement, the notation of the Lien of
Agent on any certificate of title for Collateral constituting Eligible Rental
Fleet or Equipment, in each case, to create and perfect a Lien in such
Collateral (or comparable interest under foreign law in the case of foreign
Collateral) pursuant to and to the full extent required by this Agreement or
any of the Collateral Documents.


 


(e)           Notwithstanding
anything to the contrary in this Section 2.8, with respect to any
Subsidiary of Holdings which becomes a Credit Party at any time after the
Amendment and Restatement Date or any assets acquired by any Credit Party after
the Amendment and Restatement Date in connection with a Permitted Acquisition,
the Accounts, Parts Inventory and Rental Fleet and Equipment of such new Credit
Party or in respect of such newly acquired assets, as applicable, shall not be
included in the Borrowing Base until (i) Agent shall have conducted such
appraisals, audits, evaluations and/or inspections of such Collateral as Agent
shall deem reasonably necessary or advisable with respect to such Collateral
and (ii) Holdings, Borrower and such Subsidiary shall have complied with
the requirements of this Section 2.8.


 


2.9           Control Agreements.


 


(a)           Each
of Holdings and the Borrower shall, and shall cause each other Credit Party to (i) enter
into Control Agreements with respect to each deposit account, securities
account and commodities account maintained by Holdings, Borrower or any such
Credit Party as of or after the Amendment and Restatement Date, (ii) deposit
in a deposit account subject to a Control Agreement all cash received on each
Business Day and (iii) not establish or maintain any deposit account,
securities account or commodities account unless such deposit account,
securities account or commodities account is subject to a Control Agreement as
provided in Section 3.14, in each case, other than (A) any
payroll account so long as such payroll account is a zero balance account, (B) any
disbursement account so long as (I) such disbursement account is a zero balance
account or (II) the cash and Cash Equivalents on deposit in such disbursement
account shall not exceed $250,000, (C) cash and Cash Equivalents on
deposit in or credited to the balance of withholding tax and other fiduciary
accounts and (D) cash and Cash Equivalents in an amount not to exceed
$100,000 in the aggregate.  Each such
Control Agreement shall be in


 


33





















 


form and substance satisfactory
to Agent.  The Borrower and each
Guarantor shall enter into and maintain with one or more banks and pursuant to
agreements in form and substance reasonably satisfactory to Agent, lock box
arrangements.


 


(b)           Each
of Holdings and Borrower shall, and shall cause each Credit Party, to (i) provide
each Account Debtor or other Person obligated to make a payment to any of them
under any Account or General Intangible with an envelope addressed to the
applicable Credit Party for such Account Debtor or other Person to make such payment
directly to a lockbox account or other deposit account subject to a Control
Agreement and (ii) deposit in a deposit account or securities account (as
applicable) subject to a Control Agreement promptly (but in any event within
three (3) Business Days) upon receipt all Proceeds (as defined in the
Code) of such Accounts and General Intangibles received by Holdings, Borrower
or any such Credit Party from any other Person.


 


(c)           Notwithstanding
anything to the contrary in the foregoing clauses (a) or (b),
it is understood and agreed that:


 


(i)            Agent
shall not deliver a notice of control or other similar notice to any depository
institution, securities intermediary or commodities intermediary, as
applicable, pursuant to any Control Agreement unless (A) an Event of
Default shall be continuing or (B) Borrowing Availability is less than
$10,000,000; and


 


(ii)           if
an Event of Default shall be continuing or Borrowing Availability is less than
$10,000,000, and, in each case, a control notice or similar notice has been
given by Agent in accordance with the applicable Control Agreement and the
immediately preceding clause (i), amounts deposited in or credited to
deposit accounts, securities accounts or commodities accounts subject to
Control Agreements or credited to the lock-box account will be transferred on a
daily basis to the Concentration Account and shall be available to the
applicable Credit Party.


 


2.10         Post Closing Matters.  Holdings and Borrower shall satisfy the
following requirements on or before the date that is thirty (30) days after the
Original Closing Date, or such later date as may be consented to by the Agent:


 


(a)           Borrower
shall deliver a Control Agreement, executed by Borrower, Bank of America and
Agent, with respect to the lockbox account numbered 9429118256, together with a
favorable legal opinion from Latham & Watkins LLP, special New York
and Delaware counsel for the Credit Parties, in form and substance reasonably
satisfactory to Agent; and


 


(b)           Holdings
and Borrower shall cause duly authorized termination statements or amendment
statements, as applicable, on Form UCC-3, to be filed in the appropriate
filing offices under the Code to evidence the termination or amendment, as the
case may be, of the financing statements disclosed on Part A of Schedule 3.2.


 


34


















 


SECTION 3.

NEGATIVE COVENANTS


 


Each Credit Party executing this Agreement
jointly and severally agrees as to all Credit Parties that from and after the
date hereof until the Termination Date:


 


3.1           Indebtedness.  The Credit Parties shall not and shall not cause
or permit their Subsidiaries directly or indirectly to create, incur, assume,
or otherwise become or remain directly or indirectly liable with respect to any
Indebtedness except:


 


(a)           the
Obligations;


 


(b)           Indebtedness
of Borrower and its Subsidiaries to the extent permitted pursuant to Section 3.3(b);


 


(c)           subject
to the Intercreditor Agreement, Indebtedness of Holdings and Finance Corp.
under the Senior Secured Notes;


 


(d)           Indebtedness
of Holdings and Finance Corp. under the Senior Subordinated Notes;


 


(e)           Indebtedness
not to exceed $10,000,000 in the aggregate at any time outstanding secured by
purchase money Liens or incurred with respect to Capital Leases or synthetic
leases.


 


(f)            any
other unsecured Indebtedness not to exceed $10,000,000 in the aggregate at any
time outstanding;


 


(g)           Permitted
Subordinated Indebtedness, Indebtedness in respect of a Second Lien Financing
and/or any combination thereof, in an aggregate principal amount for all such
Indebtedness not to exceed $50,000,000 (i) to the extent the proceeds of
such Indebtedness are used within ninety (90) days of the incurrence thereof to
finance a Permitted Acquisition or (ii) incurred in connection with any
substantially contemporaneous Refinancing of any of the foregoing Indebtedness;
provided, that (A) no Default or Event of Default shall have
occurred and be continuing at the time of the issuance or incurrence thereof or
would result therefrom, (B) Borrowing Availability shall be not less than
$37,500,000 both before and immediately after giving effect to the incurrence
thereof and, upon satisfaction of the requirements in Section 2.8(e),
after giving effect to any adjustment to Borrowing Availability in respect of
such Permitted Acquisition and (C) Agent shall have received satisfactory
evidence that such Indebtedness is permitted to be incurred under, as
applicable at the time of the incurrence thereof, the terms of any Subordinated
Indebtedness Documents and any Second Lien Financing Documentation.


 


(h)           Indebtedness
in respect of Permitted Earnout Obligations with respect to Permitted
Acquisitions; provided, that such Permitted Earnout Obligations shall
not exceed the amount permitted under clause (d) of the definition
of Permitted Acquisition;


 


35





















 


(i)            Indebtedness
pursuant to sale and leaseback transactions that are permitted pursuant to Section 3.7(c);


 


(j)            any
Permitted Refinancing Indebtedness in respect of Indebtedness described in the
preceding clauses (c), (d) or (g);


 


(k)           Contingent
Obligations permitted pursuant to Section 3.4 of this Agreement;
and


 


(l)            Indebtedness
under Currency Agreements, Hedging Agreements and Interest Rate Agreements
entered into by Borrower or their Subsidiaries in the ordinary course of
business and otherwise in compliance with this Agreement and, in each case, not
for speculative purposes; provided, that such Indebtedness with respect
to Currency Agreements and Hedging Agreements is unsecured.


 


3.2           Liens
and Related Matters.


 


(a)           No
Liens.  The Credit Parties shall not
and shall not cause or permit their Subsidiaries to directly or indirectly
create, incur, assume or permit to exist any Lien on or with respect to any
property or asset of such Credit Party or any such Subsidiary, whether now
owned or hereafter acquired, or any income or profits therefrom, except (collectively, the “Permitted
Encumbrances”):


 


(i)            Permitted
Liens;


 


(ii)           Liens
existing on the date Original Closing Date as set forth on Schedule 3.2
and renewals and extensions thereof; provided, that any such Liens
securing the obligations of the Credit Parties under the Bridge Loans shall not
be permitted at any time after repayment of the Bridge Loans on the Amendment
and Restatement Date;


 


(iii)          Liens
to secure (A) Purchase Money Obligations in an aggregate amount not to
exceed $20,000,000 at any time outstanding, which Purchase Money Obligations do
not otherwise constitute Indebtedness and (B) any purchase money
Indebtedness or any Capital Leases permitted under Section 3.1(e); provided,
that in each case, the Liens attach only to the assets financed by such
Indebtedness or other obligations; and provided, further, that
any such Purchase Money Obligations owing by a Credit Party to a Vendor shall
be subject to a duly executed Vendor Intercreditor Agreement;


 


(iv)          Liens
arising from the filing of precautionary financing statements under the Code by
lessors with respect to operating leases;


 


(v)           subject
to the terms of the Intercreditor Agreement, the Permitted Second Priority
Liens and Liens securing Permitted Refinancing Indebtedness in respect thereof;


 


(vi)          Liens
in favor of Nortrax Equipment Co. – Southeast, L.L.C. to the extent securing
Indebtedness not in excess of $200,000 at any time outstanding; and


 


36





















 


(vii)         Liens
not otherwise permitted above securing obligations (other than Indebtedness) in
an aggregate principal amount not to exceed $2,000,000 at any time outstanding;
provided, that such Liens shall not extend to the Stock of any Subsidiary.


 


(b)           No
Negative Pledges.  The Credit Parties
shall not and shall not cause or permit their Subsidiaries to directly or
indirectly enter into or assume any agreement (other than the Loan Documents,
any Second Lien Financing Documentation, the Senior Subordinated Notes
Documents, the Subordinated Indebtedness Documents and any Capital Lease (but
solely with respect to the assets subject to such Capital Lease)) in each case,
to the extent the relevant Indebtedness is permitted under Section 3.1)
prohibiting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired.


 


(c)           No
Restrictions on Subsidiary Distributions to Borrower.  Except as provided herein or pursuant to the
Senior Subordinated Notes Indenture, any Second Lien Financing Documentation
and any Subordinated Indebtedness Documents (in each case, to the extent the
relevant Indebtedness is permitted under Section 3.1), the Credit
Parties shall not and shall not cause or permit their Subsidiaries to directly
or indirectly create or otherwise cause or suffer to exist or become effective
any consensual Lien, encumbrance or restriction of any kind on the ability of
any such Subsidiary to: (i) pay dividends or make any other distribution
on any of such Subsidiary’s Stock owned by Borrower or any other Subsidiary; (ii) pay
any Indebtedness owed to Borrower or any other Subsidiary; (iii) make
loans or advances to Borrower or any other Subsidiary; or (iv) transfer
any of its property or assets to Borrower or any other Subsidiary.


 


3.3           Investments.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly make or own any
Investment in any Person except:


 


(a)           Borrower
and its Subsidiaries may make and own Investments in cash and Cash Equivalents;
provided that to the extent required by Section 2.9, such
Investments shall be permitted only to the extent such cash and Cash
Equivalents are maintained in a deposit account or securities account (as
applicable) subject to a Control Agreement;


 


(b)           Investments
consisting of intercompany loans, advances or capital contributions made by (i) Borrower
to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor to Borrower or
any other Subsidiary Guarantor, (iii) Borrower or any other Credit Party
to any Subsidiary of Holdings that is not a Subsidiary Guarantor in an
aggregate amount not to exceed $100,000, and (iv) any Subsidiary of
Holdings that is not a Subsidiary Guarantor to (A) a Credit Party or (B) any
other Subsidiary of Holdings that is not a Credit Party; provided, that
the obligations of any Credit Party pursuant to the foregoing clause (iv) shall
be expressly subordinated to the Obligations of such Credit Party under the
Loan Documents in a manner reasonably satisfactory to Agent; and provided,
further, that (A) each applicable Credit Party shall record all
intercompany transactions on its books and records in a manner reasonably
satisfactory to Agent; (B) at the time any such intercompany loan, advance
or capital contribution is made by a Credit Party and after giving effect
thereto, such Credit Party shall be Solvent; and (C) no Default or Event
of Default would occur and be continuing after giving effect to any such
proposed intercompany loan, advance or capital contribution;


 


37





















 


(c)           Borrower
and its Subsidiaries may make loans and advances to employees for moving,
entertainment, travel and other similar expenses in the ordinary course of
business not to exceed $1,000,000 in the aggregate at any time outstanding;


 


(d)           Investments
under Currency Agreements, Hedging Agreements and Interest Rate Agreements
entered into by Borrower or their Subsidiaries in the ordinary course of
business and otherwise in compliance with this Agreement and, in each case, not
for speculative purposes;


 


(e)           Investments
by Borrower and its Subsidiaries 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;


 


(f)            Investments
made by Borrower or its Subsidiaries as a result of consideration received in
connection with an Asset Disposition made in compliance with Section 3.7;


 


(g)           accounts
receivable and extended payment terms of Borrower and its Subsidiaries provided
to customers that are made, created or acquired in the ordinary course of
business;


 


(h)           guarantees
by Borrower or a Subsidiary of Borrower permitted to be incurred under this
Agreement; provided, that no guarantee may be made by any Subsidiary of
the Indebtedness in respect of the Senior Secured Notes, any other Second Lien
Financing, the Senior Subordinated Notes or any Permitted Subordinated
Indebtedness, in each case, unless such Subsidiary also guarantees the
Obligations;


 


(i)            Investments
consisting of deposits, prepayments and other credits to suppliers made in the
ordinary course of business of Holdings and its Subsidiaries;


 


(j)            Investments
existing on the Original Closing Date and set forth on Schedule 3.3;


 


(k)           Investments
consisting of loans made by Holdings to officers or employees of Holdings or
any other Credit Party in connection with the purchase by such officers or
employees of Stock of Holdings; provided, that the aggregate amount of
such Investments shall not exceed $1,000,000 at any time outstanding;


 


(l)            Investments
in Permitted Acquisitions;


 


(m)          Investments
consisting of intercompany loans or advances made by Borrower to Holdings in
lieu of making any Restricted Payment permitted pursuant to Section 3.5
by way of dividend or other distribution; provided, that Borrower and
Holdings shall record all such intercompany transactions on their respective books
and records in a manner reasonably satisfactory to Agent; and


 


38





















 


(n)           other
Investments in an aggregate amount not to exceed $10,000,000 at any time
outstanding.


 


3.4           Contingent
Obligations.  The Credit Parties
shall not and shall not cause or permit their Subsidiaries to directly or
indirectly create or become or be liable with respect to any Contingent
Obligation except:


 


(a)           Letter
of Credit Obligations;


 


(b)           those
resulting from Interest Rate Agreements, Currency Agreements and Hedging
Agreements entered into by Borrower pursuant to Section 3.3;


 


(c)           those
resulting from endorsement of negotiable instruments for collection in the
ordinary course of business;


 


(d)           those
existing on the Original Closing Date and described in Schedule 3.4;


 


(e)           those
arising under indemnity agreements to title insurers to cause such title
insurers to issue (i) to Agent and the Junior Collateral Agent mortgagee
title insurance policies and (ii) to the Credit Parties owner’s title
insurance policies;


 


(f)            those
arising with respect to customary indemnification obligations incurred in
connection with Asset Dispositions permitted hereunder;


 


(g)           those
incurred with respect to Indebtedness permitted by Section 3.1; provided
that in the case of any Contingent Obligation with respect to Subordinated
Indebtedness, any such Contingent Obligation is subordinated to the Obligations
to the same extent as the Indebtedness to which it relates is subordinated to
the Obligations; provided, further, that no guarantee by any
Subsidiary of Holdings of any Indebtedness constituting a Second Lien Financing
or any Subordinated Indebtedness shall be permitted unless such Subsidiary
shall have entered into (or become a party to) the Guaranty;


 


(h)           those
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 (5) Business
Days of incurrence; and


 


(i)            any
other Contingent Obligation not expressly permitted by clauses (a) through
(i) above, so long as any such other Contingent Obligations, in the
aggregate at any time outstanding, do not exceed $3,000,000.


 


Notwithstanding anything to the contrary in
this Agreement, if Parent (or any other direct or indirect parent company of
Holdings, Finance Corp. or Borrower) guarantees any Indebtedness constituting a
Second Lien Financing or any Subordinated Indebtedness, Holdings, Finance Corp.
and Borrower agree to cause Parent or such other parent company to enter into
(or become a party to) the Guaranty.


 


39





















 


3.5           Restricted Payments.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly declare, order,
pay, make or set apart any sum for any Restricted Payment, except that:


 


(a)           Borrower
may make Restricted Payments to Holdings (and Holdings may make Restricted
Payments to Parent) the proceeds of which shall be used by Parent to pay
federal, state and local income taxes then due and owing, franchise taxes and
other similar licensing expenses incurred in the ordinary course of business; provided
that Borrower’s aggregate contribution to taxes as a result of the filing of a
consolidated or combined return by Parent shall not be greater, nor the
aggregate receipt of tax benefits less, than they would have been had Borrower
not filed a consolidated or combined return with Parent;


 


(b)           any
Subsidiary of Borrower may make Restricted Payments to Borrower;


 


(c)           Holdings
and Finance Corp. may make (and Borrower may make Restricted Payments to
Holdings in the minimum amount necessary to enable Holdings and Finance Corp.
to so make) Restricted Payments consisting of:


 


(i)            regularly
scheduled payments of interest and payments of any special interest or default
interest pursuant to the terms of (A) the Senior Secured Notes Documents, (B) any
other Second Lien Financing Documentation, (C) the Senior Subordinated
Notes Documents and (D) any other Subordinated Indebtedness Documents, in
each case, solely to the extent such Indebtedness is permitted under Section 3.1;


 


(ii)           mandatory,
non-accelerated prepayments of principal of the Senior Secured Notes and any
Subordinated Indebtedness, in each case, solely to the extent that the proceeds
of the event giving rise to such prepayment are not required to be applied to
the repayment of the Advances or the collateralization of the Letter of Credit
Obligations pursuant to the terms of this Agreement;


 


(iii)          payments
on account of the purchase, redemption or defeasance of Indebtedness to the
extent expressly permitted by Section 3.18;


 


(iv)          any
cash payments required to be made to the holders of the Senior Secured Notes,
any other Second Lien Financing, the Senior Subordinated Notes or any Permitted
Subordinated Indebtedness, as the case may be and in each case, solely to the
extent such Indebtedness is permitted under Section 3.1, in
connection with the solicitation of consents to an amendment to the Senior
Secured Notes Documents, such other Second Lien Financing Documentation, the
Senior Subordinated Notes Documents or the Permitted Subordinated Indebtedness
Documents, as applicable, in each case solely to the extent such amendment is
permitted pursuant to this Agreement;


 


(v)           to
pay as and when due all reasonable fees and expenses incurred in connection
with the registration of the Senior Secured Notes and/or the Senior
Subordinated Notes (and/or of a new series of such notes to be exchanged for
the originally issued notes in a customary “A/B Exchange Offer”) with
the U.S. Securities and Exchange Commission, including reasonable fees and
disbursements of Holdings’ counsel, accountants, financial


 


40





















 


printers, dealer managers,
information agents and other third parties that are customarily involved in
such registrations and A/B Exchange Offers;


 


(vi)          to
pay as and when due all reasonable amounts required to be paid in connection
with the preparation and filing of all reports that Parent, Holdings or Finance
Corp. is or will be required to file with or furnish to the U.S. Securities and
Exchange Commission, including reasonable fees and disbursements of Parent’s,
Holdings’ and Finance Corp.’s counsel, accountants, financial printers and
other third parties that are customarily involved in such filings; and


 


(vii)         to
pay as and when due all fees, expenses and other amounts (other than (i) amounts
that become due as a result of the acceleration of any such Indebtedness and (ii) any
voluntary redemptions, repurchases or other prepayments of principal that are
not permitted pursuant to Section 3.18) under any Second Lien
Financing Documentation, the Senior Subordinated Notes Documents and the
Permitted Subordinated Indebtedness Documents, as required therein, and to pay
all other reasonable fees and out-of-pocket expenses of the Depository Trust
Company or other securities intermediaries and related agents and
counterparties in the ordinary course of business in connection with Interest
Rate Agreements, Currency Agreement and Hedging Agreements (to the extent
permitted hereunder) related to the Senior Secured Notes, any other permitted
Second Lien Financing and any Subordinated Indebtedness.


 


(d)           Holdings
and Borrower may make Restricted Payments to Parent in the minimum amount
necessary to enable Parent to pay customary annual management, consulting and
advisory 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 acquisitions or divestitures are approved by the Board of Directors of
Borrower or such Subsidiary in good faith), and indemnification payments
payable pursuant to the Management Services Agreement (which indemnification
payments shall payable on a quarterly basis); provided, that no such
fees shall be permitted to be paid during such period if a Default or Event of
Default exists at the time of any such Restricted Payment or would occur as a
result thereof and provided, further, that if an Event of Default
shall have occurred and be continuing or Borrowing Availability shall be less
than $10,000,000, the aggregate amount of any such indemnification payments and
payment of expenses in any Fiscal Year shall not exceed $500,000;


 


(e)           Borrower
may make Restricted Payments to Holdings and Holdings may make Restricted
Payments to Parent in the minimum amount necessary to enable Parent to make
repurchases of Stock deemed to occur upon the exercise of stock options if such
Stock represents a portion of the exercise price thereof;


 


(f)            if
no Default or Event of Default shall have occurred and be continuing or shall
occur as a consequence thereof, Borrower may make Restricted Payments to
Holdings (and Holdings may make Restricted Payments to Parent) in the minimum
amount necessary to enable Parent to fund its repurchase, redemption,
acquisition or cancellation of Stock from management


 


41





















 


stockholders or their
transferees upon the death, disability, retirement or termination of any such
former management stockholders; provided, that the sum of all such
Restricted Payments referred to in this clause (f) shall not exceed
$2,000,000 in any Fiscal Year and $4,000,000 in the aggregate for all such Restricted
Payments;


 


(g)           Borrower
may make Restricted Payments to Holdings (and Holdings may make Restricted
Payments to Parent) to the extent necessary to permit Holdings and Parent, as
the case may be, to pay general administrative costs and expenses when due in
the ordinary course of business in aggregate amount not to exceed $2,000,000 in
any Fiscal Year; and


 


(h)           if
no Default or Event of Default shall have occurred and be continuing or shall
occur as a consequence thereof, additional Restricted Payments that are not
otherwise permitted above in an aggregate amount not to exceed $2,000,000.


 


3.6           Amendments
to Constituent Documents; Restriction on Fundamental Changes.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly:


 


(a)           amend,
modify or waive any term or provision of its organizational documents,
including its articles of incorporation, certificates of designations
pertaining to preferred stock, by-laws, partnership agreement or operating
agreement in a manner materially adverse to Agent or Lenders unless required by
law;


 


(b)           enter
into any transaction of merger or consolidation except, upon not less than five
(5) Business Days prior written notice to Agent, any wholly-owned
Subsidiary of Borrower may be merged with or into Borrower (provided
that Borrower is the surviving entity) or any other wholly-owned Subsidiary of
Borrower (provided that if either such Subsidiary is a Guarantor, the
surviving entity shall also be a Guarantor);


 


(c)           liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution); or


 


(d)           acquire
by purchase or otherwise all or any substantial part of the business, assets or
Stock of any other Person (such Person or assets, the “Target”); provided,
that (i) the Credit Parties shall be permitted to make such acquisitions
to the extent such acquisition constitutes an Investment permitted under Section 3.3;
and provided, further, that Borrower and its Subsidiaries (and
Holdings, so long as all assets so acquired are transferred to Borrower or a
Credit Party (other than Holdings) substantially contemporaneously with the
closing of such acquisition) may acquire all or substantially all of the Stock
of any Target or the assets constituting a business unit of Target in connection
with a Permitted Acquisition.


 


3.7           Disposal of Assets
or Subsidiary Stock.  The Credit
Parties shall not and shall not cause or permit their Subsidiaries to directly
or indirectly consummate any Asset Disposition, or grant any Person an option
to acquire, in one transaction or a series of related transactions, any of its
property, business or assets, whether now owned or hereafter acquired, except:


 


42





















 


(a)           the
sale, lease, rental, transfer or other disposition of Parts Inventory and
Rental Fleet and Equipment in good faith for fair value in the ordinary course
of business; provided, that if the Net Proceeds of any such Asset
Disposition consisting of a sale or other similar disposition of Rental Fleet and
Equipment realized by the Credit Parties exceeds (or would exceed after giving
effect thereto) $10,000,000 in the aggregate for all such Asset Dispositions
since the date of the information reflected in the most recent Borrowing Base
Certificate delivered to Agent, Borrower shall deliver an updated Borrowing
Base Certificate to Agent dated as of the date of such Asset Disposition which
demonstrates (with supporting calculations) that the Borrowing Base is greater
than the Revolving Loans then outstanding (including, without duplication,
the then outstanding balance of Swing Line Loans and Letter of Credit
Obligations (other than Letter of Credit Obligations that are secured by (i) cash
collateral in an amount equal to 105% of such Letter of Credit Obligations or (ii) a
standby letter of credit (in form and substance and from an issuer satisfactory
to Agent) in a face amount equal to 105% of such Letter of Credit
Obligations));


 


(b)           the
sale, lease, transfer or other disposition of obsolete, worn-out or surplus
equipment or leased or owned real property not used or useful in the business;


 


(c)           the
disposition by Borrower and its Subsidiaries of Rental Fleet and Equipment
pursuant to sale and leaseback transactions; provided, that the fair
market value of all such Rental Fleet and Equipment so disposed shall not
exceed $15,000,000 in the aggregate; and provided, further, that
if the Net Proceeds of any such Asset Dispositions realized by the Credit
Parties exceeds (or would exceed after giving effect thereto) $7,500,000 in the
aggregate for all such Asset Dispositions since the date of the information
reflected in the most recent Borrowing Base Certificate, Borrower shall deliver
an updated Borrowing Base Certificate to Agent dated as of the date of such
Asset Disposition which demonstrates (with supporting calculations) that the
Borrowing Base is greater than the Revolving Loans then outstanding
(including, without duplication, the then outstanding balance of Swing Line
Loans and Letter of Credit Obligations (other than Letter of Credit Obligations
that are secured by (i) cash collateral in an amount equal to 105% of such
Letter of Credit Obligations or (ii) a standby letter of credit (in form
and substance and from an issuer satisfactory to Agent) in a face amount equal
to 105% of such Letter of Credit Obligations)); and


 


(d)           losses
or destruction of, or damage to, or condemnation of any property of Holdings or
its Subsidiaries so long as the Net Proceeds thereof are applied in accordance
with Section 1.5(e).


 


(e)           other
Asset Dispositions by Borrower and its Subsidiaries (excluding sales of
Accounts and Stock of any of Holdings’ Subsidiaries) if all of the following
conditions are met:


 


(i)            the
fair market value of assets sold, transferred or otherwise disposed of in any
single transaction or series of related transactions does not exceed $5,000,000
in the aggregate for all such Asset Dispositions;


 


43





















 


(ii)           the
consideration received is at least equal to the fair market value of such
assets;


 


(iii)          at
least 75% of the consideration received is cash or Cash Equivalents;


 


(iv)          the
Net Proceeds of such Asset Disposition are applied as required by Section 1.5(d);
and


 


(v)           no
Default or Event of Default then exists or would result from such Asset
Disposition.


 


3.8           Transactions
with Affiliates.


 


(a)           The
Credit Parties shall not and shall not cause or permit their Subsidiaries to
directly or indirectly enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
management, consulting, investment banking, advisory or other similar services)
with any Affiliate or with any director, officer or employee of any Credit
Party, (an “Affiliate Transaction”), other than Affiliate Transactions
in the ordinary course of business and pursuant to the reasonable requirements
of the business of any such Credit Party or any of its Subsidiaries and upon
fair and reasonable terms which are fully disclosed (in writing) to Agent at
least five (5) days prior to the consummation thereof and are not
materially less favorable than those that might reasonably have been obtained
by such Credit Party in a comparable transaction at such time on an arm’s-length
basis from a Person that is not an Affiliate of Holdings or such Subsidiary; provided, that:


 


(i)            in
respect of Affiliate Transactions consisting of sales or leases of equipment by
a Credit Party to MasTec, Inc., such transaction shall be:


 


(A)          in
the ordinary course of business;


 


(B)           conducted
upon fair and reasonable 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
Holdings or such Subsidiary; and


 


(C)           pursuant
to sales, leases or rental agreements containing substantially similar terms as
the leases or rental agreements as those entered into by any Credit Party with
other customers that are not Affiliates of such Credit Party; and


 


(ii)           for
all other Affiliate Transactions with an aggregate value of $2,500,000 or more,
at Borrower’s option, either:


 


(A)          a
majority of the disinterested members of the Board of Directors of Holdings
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


 


44





















 


obtained in a comparable transaction at such
time on an arm’s-length basis from a Person that is not an Affiliate of
Borrower; or


 


(B)           the
Board of Directors of Holdings or any such Subsidiary party to such Affiliate
Transaction shall obtain an opinion from a nationally recognized investment
banking, appraisal or accounting firm 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 Borrower;


 


(b)           The
restrictions of clause (a) of this Section 3.8 shall
not apply to:


 


(i)            reasonable
fees and compensation paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of Holdings or any of its Subsidiaries as
determined in good faith by Holdings’ Board of Directors or senior management;


 


(ii)           transactions
exclusively between or among Holdings and any of its Subsidiaries or
exclusively between or among Subsidiaries, provided such transactions
are not otherwise prohibited by this Agreement;


 


(iii)          Affiliate
Transactions pursuant to Contractual Obligations in effect on the Original
Closing Date as set forth on Schedule 3.8 (including pursuant to
any amendment to such Contractual Obligations or documentation replacing such
Contractual Obligations to the extent that such amendment or agreement is
permitted hereunder and is not more disadvantageous to applicable Credit Party
or the Lenders in any material respect than the original Contractual
Obligation);


 


(iv)          Restricted
Payments permitted by this Agreement and Investments permitted by this
Agreement;


 


(v)           the
payment of customary annual management, consulting and advisory 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 Borrower or such Subsidiary in good faith;


 


(vi)          payments
or loans to employees or consultants that are approved by the Board of
Directors of Borrower in good faith; and


 


(vii)         sales
of Qualified Stock.


 


3.9           Conduct of Business.


 


(a)           Holdings
shall not engage in any business or activity other than (i) being a
guarantor with respect to the Obligations under the Loan Documents, (ii) holding
shares in the Stock of Borrower and Finance Corp., (iii) performing its
obligations under the Senior Secured


 


45





















 


Notes Documents, any other
Second Lien Financing Documentation, the Senior Subordinated Notes Documents,
the Permitted Subordinated Notes Documents and any Related Transaction
Document, (iv) paying taxes, (v) preparing reports to Governmental
Authorities and to its shareholders and (vi) holding meetings of its Board
of Directors and/or shareholders, preparing corporate records and other
corporate activities required to maintain its separate corporate structure.


 


(b)           Finance
Corp. shall not hold any assets, or engage in any business or activity, other
than (i) being a guarantor with respect to the Obligations under the Loan
Documents, (ii) performing its obligations as a co-issuer under the Senior
Secured Notes Documents, any other Second Lien Financing Documentation, the
Senior Subordinated Notes Documents, the Permitted Subordinated Notes Documents
and any Related Transaction Document, provided, that in the case of any
such Indebtedness, the proceeds thereof shall be received by a Credit Party, (iii) paying
taxes, (iv) preparing reports to Governmental Authorities and to its
shareholders and (v) meetings of its Board of Directors and/or
shareholders, preparing corporate records and other corporate activities
required to maintain its separate corporate structure.


 


(c)           The
Credit Parties shall not and shall not cause or permit their Subsidiaries to
engage in any businesses a majority of whose revenues are not derived from
businesses that are the same as or reasonably similar, ancillary or related to,
or a reasonable extension, development or expansion of, the businesses in which
the Credit Parties and their Subsidiaries are engaged on the Amendment and
Restatement Date as set forth on Schedule 3.9.


 


3.10         Changes
Relating to Indebtedness.


 


(a)           The
Credit Parties shall not and shall not cause or permit their Subsidiaries to
directly or indirectly change or amend the terms of any of its Indebtedness
permitted by Section 3.1(c), (d), (g) or (j) if the
effect of such amendment is to:


 


(i)            increase
the interest rate on such Indebtedness;


 


(ii)           change
the dates upon which payments of principal or interest are due in a manner
which has the effect of accelerating the date of payment or increase the
principal amount of such Indebtedness;


 


(iii)          change
any event of default in a manner materially adverse to any Credit Party or the
Lenders or add or make more restrictive any covenant with respect to such
Indebtedness;


 


(iv)          change
the redemption or prepayment provisions of such Indebtedness;


 


(v)           change
or amend any other term if such change or amendment would materially increase
the obligations of the obligor or confer additional material rights on the
holder of such Indebtedness in a manner adverse to any Credit Party or the
Lenders; or


 


46





















 


(vi)          increase
the portion of interest payable in cash with respect to any Indebtedness for
which interest is payable by the issuance of payment-in-kind notes or is
permitted to accrue.


 


(b)           The
Credit Parties shall not and shall not cause or permit their Subsidiaries to
directly or indirectly change or amend the intercreditor arrangements governing
any Second Lien Financing in a manner adverse to any Credit Party or the
Lenders.


 


(c)           The
Credit Parties shall not and shall not cause or permit their Subsidiaries to
directly or indirectly change or amend the subordination provisions of any
Subordinated Indebtedness (or any guaranty thereof) in a manner adverse to any
Credit Party or the Lenders.


 


3.11         Fiscal Year.  No Credit Party shall change its Fiscal Year
or permit any of its Subsidiaries to change their respective Fiscal Years.


 


3.12         Press
Release; Public Offering Materials. 
Each Credit Party executing this Agreement agrees that neither it nor
its Affiliates will in the future issue any press releases or other public
disclosure, including any prospectus, proxy statement or other materials filed
with any Governmental Authority relating to a public offering of the Stock of
any Credit Party, using the name of GE Capital or its affiliates or referring
to this Agreement, the other Loan Documents, any Related Swap Contracts or the
Related Transaction Documents without at least two (2) Business Days’
prior notice to GE Capital and without the prior written consent of GE Capital
unless (and only to the extent that) such Credit Party or Affiliate is required
to do so under law and then, in any event, such Credit Party or Affiliate will
consult with GE Capital before issuing such press release or other public
disclosure; provided, that GE Capital acknowledges and agrees that the
Credit Parties shall be permitted to disclose, in a manner reasonably
acceptable to GE Capital, the material terms of this Agreement in the
Subordinated Indebtedness Documents, the Senior Secured Notes Documents
(including the offering circular relating thereto) and any other Second Lien
Financing Documentation.  Each Credit
Party consents to the publication by Agent or any Lender of a tombstone or
similar advertising material relating to the financing transactions
contemplated by this Agreement.  Agent or
such Lender shall provide a draft of any such tombstone or similar advertising
material to each Credit Party for review and comment prior to the publication
thereof.  Agent reserves the right to
provide to industry trade organizations information necessary and customary for
inclusion in league table measurements.


 


3.13         Subsidiaries.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to directly or indirectly establish, create
or acquire any new Subsidiary except in connection with Investments expressly
permitted under Section 3.3 or otherwise with the consent of Agent;
provided that the Credit Parties shall comply with Section 2.8
in connection therewith.


 


3.14         Bank
Accounts; Securities Accounts; Commodities Accounts.  The Credit Parties shall not:


 


(a)           establish
any new bank accounts without prior written notice to Agent and unless Agent
and the depository institution at which the account is to be opened enter into
a


 


47





















 


Control Agreement; provided,
that Agent shall not cause (or deliver notice to the applicable depository
institution to cause) amounts credited to such deposit accounts to be
transferred on a daily basis to the Concentration Account or otherwise unless (i) an
Event of Default shall have occurred and be continuing or (ii) Borrowing
Availability shall be less than $10,000,000;


 


(b)           establish
any new securities accounts without prior written notice to Agent and unless
Agent and the securities intermediary at which the account is to be opened
enter into a Control Agreement; provided, that Agent shall not cause (or
deliver notice to the applicable securities intermediary to cause) amounts
credited to such securities accounts to be transferred on a daily basis to the
Concentration Account or otherwise unless (i) an Event of Default shall
have occurred and be continuing or (ii) Borrowing Availability shall be
less than $10,000,000; and


 


(c)           establish
any new commodities accounts without prior written notice to Agent and unless
Agent and the commodities intermediary at which the account is to be opened
enter into a Control Agreement; provided, that Agent shall not cause (or
deliver notice to the applicable commodities intermediary to cause) amounts
credited to such commodities accounts to be transferred on a daily basis to the
Concentration Account or otherwise unless (i) an Event of Default shall
have occurred and be continuing or (ii) Borrowing Availability shall be
less than $10,000,000.


 


3.15         Hazardous Materials.  The Credit Parties shall not and shall not
cause or permit their Subsidiaries to cause or permit a Release of any
Hazardous Material on, at, in, under, above, to, from or about any of the Real
Estate where such Release would (a) violate in any respect, or form the
basis for any Environmental Liabilities by the Credit Parties or any of their
Subsidiaries under, any Environmental Laws or Environmental Permits or (b) otherwise
adversely impact the value or marketability of any of the Real Estate or any of
the Collateral, other than such violations or Environmental Liabilities or
impairment of the value or marketability of the Real Estate that could not
reasonably be expected to have a Material Adverse Effect.


 


3.16         ERISA.


 


(a)           The
Credit Parties shall not and shall not cause or permit any ERISA Affiliate to,
cause or permit to occur an ERISA Event to the extent such ERISA Event could
reasonably be expected to have a Material Adverse Effect.


 


(b)           The
Credit Parties shall not and shall not cause or permit any ERISA Affiliate to
become a party to a Multiemployer Plan.


 


3.17         Lease Limits.  Holdings will not and will not permit any of
its Subsidiaries directly or indirectly to become or remain liable in any way,
whether directly or by assignment or as a guarantor or other surety, for the
obligations of the lessee under any operating lease, synthetic lease or similar
off-balance sheet financing, if the aggregate amount of all rents (or
substantially equivalent payments) paid by Holdings and its Subsidiaries under
all such leases would exceed $20,000,000 in any Fiscal Year of Borrower.


 


48





















 


3.18         Prepayments
of Other Indebtedness.


 


(a)           Subject
to clause (b) below, the Credit Parties shall not, directly or
indirectly, voluntarily purchase, redeem, defease or prepay any principal of,
premium, if any, interest or other amount payable in respect of any
Indebtedness, other than:


 


(i)            the
Obligations;


 


(ii)           Indebtedness
secured by a Permitted Encumbrance of the type specified in Section 3.1(e),
if the asset securing such Indebtedness has been sold or otherwise disposed of
in accordance with Section 3.7(e);


 


(iii)          intercompany
Indebtedness reflecting amounts owing to Borrower;


 


(iv)          Indebtedness
in respect of any Second Lien Financing or any Subordinated Indebtedness in an
aggregate principal amount for all such redemptions, purchases and prepayments
not to exceed $25,000,000; provided, that such redemption, purchase or
prepayment shall not be permitted unless (A) the date of such redemption,
purchase or prepayment is not earlier than the six (6) month anniversary
of the Original Closing Date, (B) no Event of Default shall have occurred
and be continuing at such time or would result therefrom and (C) Borrowing
Availability shall be not less than $37,500,000 both before and after giving
effect to the applicable redemption, purchase or prepayment,


 


(v)           purchases,
redemptions, defeasances or prepayments of principal of, premium, if any,
interest or other amount payable in respect of Indebtedness solely to the
extent such actions are expressly permitted pursuant to Section 3.5;


 


(vi)          optional
prepayments or redemptions of up to thirty five percent (35%) of the aggregate
principal amount the Senior Secured Notes at the redemption price provided
therefor in the Senior Secured Notes Documents, together with any accrued and
unpaid interest thereon, if any, to the date of redemption; provided,
that such prepayments shall be permitted solely to the extent financed with the
proceeds of one or more issuances of Qualified Stock of Holdings or Parent;


 


(vii)         optional
redemptions or prepayments of Indebtedness of the type described in clauses
(c), (d) or (g) of Section 3.1 with the
proceeds of Permitted Refinancing Indebtedness permitted under Section 3.1(j);
and


 


(viii)        the
Bridge Loans on the Amendment and Restatement Date with the proceeds of Loans
hereunder in an aggregate amount not to exceed $10,000,000 and the Senior
Secured Notes;


 


(b)           The
Credit Parties shall not, directly or indirectly, make or permit to be made (i) any
payment of any Subordinated Indebtedness in violation of the subordination
terms thereof or (ii) any voluntary prepayment of any Indebtedness under a
Second Lien Financing; provided, that the Credit Parties shall be permitted
to refinance Subordinated Indebtedness and Second Lien Financings permitted to
be incurred hereunder directly with the proceeds of (A)


 


49





















 


subject to Section 1.5(c),
any issuance of Qualified Stock of Holdings or (B) any Permitted
Refinancing Indebtedness in respect thereof that is permitted under Section 3.1.


 


(c)           Notwithstanding
anything to the contrary in this Section 3.18, it is understood
that any offer to purchase Indebtedness due to the occurrence of an “Asset
Disposition” or a “Change of Control” under and as defined in any Subordinated
Indebtedness Documents, any Second Lien Financing Documentation or any
documentation governing any Permitted Refinancing Indebtedness in respect of
the foregoing is not a voluntary payment of Indebtedness.


 


3.19         Changes to Material
Contracts.  The Credit Parties shall
not and shall not cause or permit any of their Subsidiaries to change or amend
the terms of the Management Services Agreement.


 


SECTION 4.

FINANCIAL AND OTHER REPORTING COVENANTS


 


Each of Holdings and Borrower covenants and
agrees that from and after the date hereof until the Termination Date, Holdings
and Borrower shall perform and comply with, and shall cause each of the other
Credit Parties to perform and comply with, all covenants in this Section 4
applicable to such Person.


 


4.1           Financial
Statements and Other Reports. 
Holdings and Borrower will maintain, and cause each of their
Subsidiaries to maintain, a system of accounting established and administered
in accordance with sound business practices to permit preparation of Financial
Statements in conformity with GAAP (it being understood that monthly Financial
Statements are not required to have footnote disclosures).  Borrower will deliver each of the Financial
Statements and other reports described below to Agent (with sufficient copies
for each Lender):


 


(a)           Monthly
Financials.  As soon as available and
in any event within thirty (30) days after the end of each month (including the
last month of Holdings’ Fiscal Year) (or in the case of any month that
coincides with the last month in any Fiscal Quarter, within forty-five (45)
days after the end of such month), Borrower will deliver (i) the
consolidated and consolidating balance sheets of Holdings and its Subsidiaries,
as at the end of such month, and the related consolidated and (except in the
case of cash flows) consolidating statements of income, stockholders’ equity
and cash flow for such month and for the period from the beginning of the then current
Fiscal Year of Holdings to the end of such month and (ii) a report setting
forth in comparative form the corresponding figures for the corresponding
periods of the previous Fiscal Year and in the case of each month the last day
of which coincides with the end of a Fiscal Quarter, the corresponding figures
from the most recent Projections for the current Fiscal Year delivered pursuant
to Section 4.1(f).


 


(b)           Year-End
Financials.  As soon as available and
in any event within ninety (90) days after the end of each Fiscal Year of
Holdings, Borrower will deliver (i) the consolidated and consolidating
balance sheets of Holdings and its Subsidiaries, as at the end of such year,
and the related consolidated and (except in case of cash flows) consolidating


 


50





















 


statements of income,
stockholders’ equity and cash flow for such Fiscal Year, and (ii) a report
with respect to the consolidated Financial Statements from Borrower’s
Accountants, which report shall be prepared in accordance with Statement of
Auditing Standards No. 58 (the “Statement”) “Reports on Audited
Financial Statements” and such report shall be “Unqualified” (as such term is
defined in such Statement).


 


(c)           Accountants’
Reports.  Promptly upon receipt
thereof, Borrower will deliver copies of all significant reports submitted by
Borrower’s Accountants in connection with each annual, interim or special audit
or review of any type of the Financial Statements or related internal control
systems of Holdings and its Subsidiaries made by such accountants, including
any comment letter submitted by such accountants to management in connection
with their services.


 


(d)           Additional
Deliveries.


 


(i)            To
Agent, upon its request, and in any event no less frequently than 12:00 p.m.
(noon) (New York time) on the fifteenth Business Day after the end of each
Fiscal Month of the Borrower, a Borrowing Base Certificate with respect to
Borrower and the Eligible Credit Parties, accompanied by such supporting detail
and documentation as shall be requested by Agent in its reasonable discretion
(in substantially the same form as Exhibit 4.1(d) (the “Borrowing
Base Certificate”), which shall be prepared by Borrower as of the last day
of the immediately preceding Fiscal Month reporting period or the date that is
two (2) days prior to the date of any such additional request.


 


(ii)           To
Agent, within 45 days after the end of each Fiscal Year (or, if an Event of
Default shall have occurred and be continuing or Borrowing Availability shall be
less than $10,000,000, more frequently as the Agent may request), each of which
shall be prepared by Borrower as of the last day of the immediately preceding
reporting period or the date that is two (2) days prior to the date of any
such additional request:


 


(A)          with
respect to Borrower and the Eligible Credit Parties, a summary of Rental Fleet
and Equipment by type, accompanied by such supporting detail and documentation
as shall be requested by Agent in its reasonable discretion; and


 


(B)           with
respect to Borrower and the Eligible Credit Parties, a summary aging showing
Accounts outstanding aged from invoice date as follows:  1 to 30 days, 31 to 60 days, 61 to 90 days
and 91 days or more, accompanied by such supporting detail and documentation as
shall be requested by Agent in its reasonable discretion.


 


(iii)          To
Agent, at the time of delivery of each of the monthly financial statements
delivered for each Fiscal Month that coincides with the end of a Fiscal Quarter
pursuant to Section 4.1, a summary reconciliation of all Rental
Fleet and Equipment of Borrower and each of the Eligible Credit Parties,
accompanied by such supporting detail and documentation as Agent shall be
requested by Agent in its reasonable discretion.


 


51





















 


(iv)          To
Agent, at the time of delivery of each of the monthly financial statements
delivered for each Fiscal Month that coincides with the end of a Fiscal Quarter
and the annual Financial Statements delivered pursuant to Section 4.1
to the extent applicable, (i) a listing of government contracts of
Borrower subject to the Federal Assignment of Claims Act of 1940; and (ii) a
list of any applications for the registration of any Patent, Trademark or
Copyright filed by any Credit Party with the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or agency in
the prior Fiscal Quarter.


 


(e)           Appraisals;
Inspections.


 


(i)            Each
Credit Party, at its sole cost and expense, shall promptly deliver to Agent the
results of each physical verification, if any, which such Credit Party may, in
its discretion have made, or caused any other Person to have made on its
behalf, of all or any portion of its Inventory.


 


(ii)           If
a Default or Event of Default has occurred and is continuing, Borrower, at its
own expense, shall deliver to Agent the results of any physical verification,
as Agent may reasonably require.


 


(iii)          Borrower,
at its own expense, shall cause to be delivered to Agent an appraisal,
performed by an Approved Appraiser, of the Orderly Liquidation Value of its
Rental Fleet and Equipment once in each Fiscal Quarter (at the time during such
Fiscal Quarter determined by Agent and at the cost and expense of Borrower); provided,
that so long as any Event of Default has occurred and is continuing, Borrower,
at its own expense, shall cause such appraisals to be performed on a more
frequent basis and at such times as Agent shall require.  For the purposes of this clause (iii),
an appraisal requested or initiated by Agent while an Event of Default is
continuing, shall be required whether or not such Event of Default continues
through the time of completion of such appraisal.


 


(iv)          Borrower
shall permit Agent or a Person designated by Agent to conduct a field audit of
the Accounts and Parts Inventory twice during each Fiscal Year (at the times
during such Fiscal Year determined by Agent and at the cost and expense of
Borrower); provided, that so long as any Event of Default has occurred
and is continuing, Borrower, at its own expense, shall permit Agent or a Person
designated by Agent to perform such audits at such times as Agent shall
require.  For the purposes of this clause
(iii), an audit initiated by Agent or such Person while an Event of Default
is continuing, shall be required whether or not such Event of Default continues
through the time of completion of such audit.


 


(f)            Projections.  As soon as available and in any event no
later than thirty (30) days after the last day of each of Fiscal Year of
Holdings, Borrower will deliver Projections of Holdings and its Subsidiaries
for the forthcoming Fiscal Year, prepared on a quarterly basis.


 


(g)           SEC
Filings and Press Releases.  Promptly
upon their becoming available, Borrower will deliver copies of (i) all
Financial Statements, reports, notices and proxy statements sent or made
available by Holdings, Borrower or any of their Subsidiaries to their
respective Stockholders or to the holders of any Subordinated Indebtedness, any
Second Lien Financing or


 


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any Permitted Refinancing
Indebtedness in respect of any of the foregoing, (ii) all regular and
periodic reports and all registration statements and prospectuses, if any,
filed by Holdings, Borrower or any of their Subsidiaries with any securities
exchange or with the Securities and Exchange Commission, any Governmental
Authority or any private regulatory authority, and (iii) all press
releases and other statements made available by Holdings, Borrower or any of
their Subsidiaries to the public concerning developments in the business of any
such Person.


 


(h)           Events
of Default, Etc.  Promptly upon any
officer of any Credit Party obtaining knowledge of any of the following events
or conditions, Borrower or such Credit Party shall deliver copies of all
notices given or received by Holdings, Borrower or any of their Subsidiaries
with respect to any such event or condition and a certificate of Borrower’s
chief executive officer specifying the nature and period of existence of such
event or condition and what action Holdings, Borrower or any of their
Subsidiaries has taken, is taking and proposes to take with respect
thereto:  (i) any condition or event
that constitutes, or which could reasonably be expected to result in the
occurrence of, an Event of Default or Default; (ii) any written notice
that any Person has given to Holdings, Borrower or any of their Subsidiaries or
any other action taken with respect to a claimed default or event or condition
of the type referred to in Section 6.1(b); (iii) any event or
condition that could reasonably be expected to result in any Material Adverse
Effect; or (iv) any default or event of default with respect to any
Indebtedness of Holdings, Borrower or any of their Subsidiaries.


 


(i)            Litigation.  Promptly upon any officer of any Credit Party
obtaining knowledge of (i) the institution of any action, charge, claim,
demand, suit, proceeding, petition, governmental investigation, tax audit or
arbitration now pending or, to the best knowledge of such Credit Party after
due inquiry, threatened against or adversely affecting any Credit Party or any
of its Subsidiaries or any property of any Credit Party or any of its
Subsidiaries (“Litigation”) not previously disclosed by Borrower or any
other Credit Party to Agent or (ii) any material development in any
action, suit, proceeding, governmental investigation or arbitration at any time
pending against or affecting any Credit Party or any property of any Credit
Party which, in each case, could reasonably be expected to have a Material
Adverse Effect, Borrower will promptly give notice thereof to Agent and provide
such other information as may be reasonably available to them to enable Agent
and its counsel to evaluate such matter.


 


(j)            ERISA.  Promptly upon any officer of any Credit Party
obtaining knowledge of (i) the occurrence of a “prohibited transaction”
(as such term is defined in Section 406 of ERISA or Section 4975 of
the IRC) with respect to any Plan that would result in the imposition on the
Borrower or any of its Subsidiaries of a tax or penalty in any material amount;
(ii) any reportable event as defined in Section 4043(c) of ERISA
with respect to a Title IV Plan (for which the 30-day notice requirement has
not been waived); (iii) the creation of any Lien in favor of the PBGC or a
Title IV Plan; (iv) any withdrawal from, or the termination reorganization
or insolvency of any Multiemployer Plan; (iv) the institution or taking of
any other action by the PBGC, Holdings or any of its Subsidiaries under ERISA to
terminate or to partially terminate any Title IV Plan or appoint a trustee to
administer any such plan or the commencement or threatened commencement of any
litigation regarding any such Plan that would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


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(k)           Notice
of Corporate and other Changes. 
Borrower shall provide prompt (and in any event within five (5) Business
Days) written notice of (i) any change after the Amendment and Restatement
Date in the legal name of any Credit Party, (ii) all jurisdictions in
which a Credit Party becomes qualified after the Amendment and Restatement Date
to transact business, (iii) any change after the Amendment and Restatement
Date in the authorized and issued Stock of any Credit Party or any Subsidiary
of any Credit Party (other than any change in the authorized and issued Stock
of Holdings issued in connection with the grant of Stock or stock options to
employees of Holdings or any of its Subsidiaries) or any amendment to their
articles or certificate of incorporation, by-laws, partnership agreement or
other organizational documents, (iv) any change in the jurisdiction of
organization of any Credit Party and (v) any Subsidiary created or
acquired by any Credit Party or any of its Subsidiaries after the Amendment and
Restatement Date, such notice, in each case, to identify the applicable
jurisdictions, capital structures or Subsidiaries, as applicable.  The foregoing notice requirement shall not be
construed to constitute consent by any of the Lenders to any transaction
referred to above which is not expressly permitted by the terms of this
Agreement.


 


(l)            Compliance
and Pricing Certificate.  Together
with each delivery of Financial Statements of Holdings and its Subsidiaries
pursuant to Sections 4.1(a) and (b), Borrower will deliver a
fully and properly completed Compliance and Pricing Certificate (in
substantially the same form as Exhibit 4.1(l) (the “Compliance
and Pricing Certificate”) signed by Borrower’s chief executive officer or
chief financial officer.


 


(m)          Intellectual
Property.  Promptly upon any officer
of any Credit Party obtaining knowledge that (i) any Intellectual Property
that is used in or necessary for the conduct of such Credit Party’s business
that is material to the condition (financial or otherwise), business or
operations of such Credit Party and its Subsidiaries is not fully protected
and/or duly and properly registered, filed or issued in the appropriate office
and jurisdictions for such registrations, filings or issuances or (ii) the
use of such Intellectual Property by the Credit Parties or their Subsidiaries
or the conduct of their businesses infringes on the rights of any other Person,
which in each case, could reasonably be expected to have a Material Adverse
Effect, Borrower will promptly give notice thereof to Agent and provide such
other information as may be reasonably available to the Credit Parties to
enable Agent and its counsel to evaluate such matters.


 


(n)           Other
Information.  With reasonable
promptness, Holdings and Borrower will deliver such other information and data
with respect to any Credit Party or any Subsidiary of any Credit Party as from
time to time may be reasonably requested by Agent.


 


(o)           Taxes.  Borrower shall provide prompt written notice
of (i) the execution or filing with the IRS or any other Governmental
Authority of any agreement or other document extending, or having the effect of
extending, the period for assessment or collection of any material Charges by
any Credit Party or any of its Subsidiaries with respect to Taxes which could
reasonably be expected to have a Material Adverse Effect and (ii) any
agreement by any Credit Party or any of its Subsidiaries or request directed to
any Credit Party or any of its Subsidiaries to make any adjustment under IRC Section 481(a),
by reason of a change in accounting method or otherwise, which could reasonably
be expected to have a Material Adverse Effect.


 


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(p)           Leases.  Upon the reasonable request therefor,
Holdings and Borrower shall promptly (and in any event within thirty (30) days
of such request), deliver copies of all leases of Real Estate held by the
Credit Parties or a summary of terms thereof reasonably satisfactory to Agent.


 


(q)           Other
Debt Documents.  Holdings and
Borrower shall promptly deliver any amendment, notice, report, certificate,
financial statement or other instrument or document delivered after the
Amendment and Restatement Date in connection with or pursuant to any Second
Lien Financing Documentation or any Subordinated Indebtedness Document, in each
case, to the extent not already delivered pursuant hereto.


 


4.2           Accounting Terms;
Utilization of GAAP for Purposes of Calculations Under Agreement.  For purposes of this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to such terms in conformity with GAAP. 
Financial statements and other information furnished to Agent or Lenders
pursuant to Section 4.1 or any other section (unless
specifically indicated otherwise) shall be prepared in accordance with GAAP as
in effect at the time of such preparation; provided, that Holdings and
Borrower shall prepare footnotes to the Financial Statements required to be
delivered hereunder that show the differences between the Financial Statements
delivered (which reflect such Accounting Changes) and the basis for calculating
the Leverage Ratio for purposes of determining the Applicable Margin (without
reflecting such Accounting Changes).


 


SECTION 5.

REPRESENTATIONS AND WARRANTIES


 


To induce Agent and Lenders to enter into the
Loan Documents, to make Loans and to issue or cause to be issued Letters of
Credit, Holdings, Borrower and the other Credit Parties executing this
Agreement, jointly and severally, represent, warrant and covenant to Agent and
each Lender that, on and as of the Amendment and Restatement Date and after
giving effect to the making of the Loans hereunder on the Amendment and Restatement
Date and the other Related Transactions occurring on the Amendment and
Restatement Date, and on and as of each date as required by Section 7.2(a),
the following statements are true, correct and complete with respect to all
Credit Parties:


 


5.1           Disclosure.  No representation or warranty of any Credit
Party contained in this Agreement, the Financial Statements referred to in Section 5.5,
the other Related Transaction Documents or any other document, certificate or
written statement furnished to Agent or any Lender by or on behalf of any such
Person for use in connection with the Loan Documents or the Related Transaction
Documents contains any untrue statement of a material fact or taken as a whole
omitted, omits or will omit to state a material fact necessary in order to make
the statements contained herein or therein not materially misleading in light
of the circumstances in which the same were made.


 


5.2           No Material Adverse
Effect.  Since December 31,
2004, there have been no events or changes in facts or circumstances affecting
any Credit Party or any of its Subsidiaries


 


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which individually or in the
aggregate have had or could reasonably be expected to have a Material Adverse
Effect.


 


5.3           No Conflict.  The consummation of the Related Transactions
does not and will not violate or conflict with any laws, rules, regulations or
orders of any Governmental Authority or violate, conflict with, result in a
breach of, or constitute a default (with due notice or lapse of time or both)
under any Contractual Obligation or organizational documents of any Credit
Party or any of its Subsidiaries except if such violations, conflicts, breaches
or defaults could not reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect.


 


5.4           Organization,
Powers, Capitalization and Good Standing.


 


(a)           Organization
and Powers.  Each of the Credit
Parties and each of their Subsidiaries is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and
qualified to do business in all states where such qualification is required
except where failure to be so qualified could not reasonably be expected to
have a Material Adverse Effect.  As of
the Amendment and Restatement Date, the exact legal name, the jurisdiction of
organization and all jurisdictions in which each Credit Party is qualified to
do business are set forth on Schedule 5.4(a).  Each of the Credit Parties and each of their
Subsidiaries has all requisite organizational power and authority to own and
operate its properties, to carry on its business as now conducted and proposed
to be conducted, to enter into each Related Transaction Document to which it is
a party and to incur the Obligations, grant Liens and security interests in the
Collateral and carry out the Related Transactions.


 


(b)           Capitalization.  As of the Amendment and Restatement
Date:  (i) the authorized Stock of
each of the Credit Parties and each of their Subsidiaries is as set forth on Schedule 5.4(b);
(ii) all issued and outstanding Stock of each of the Credit Parties and
each of their Subsidiaries is duly authorized and validly issued, fully paid,
nonassessable, free and clear of all Liens other than those in favor of Agent
for the benefit of Agent and Lenders, and such Stock was issued in compliance
with all applicable state, federal and foreign laws concerning the issuance of
securities; (iii) the identity of the holders of the Stock of each of the
Credit Parties and each of their Subsidiaries and the percentage of their fully-diluted
ownership of the Stock of each of the Credit Parties and each of their
Subsidiaries is set forth on Schedule 5.4(b); and (iv) no
Stock of any Credit Party or any of their Subsidiaries, other than as described
on Schedule 5.4(b), are issued and outstanding.  Except as provided in Schedule 5.4(b),
as of the Amendment and Restatement Date, there are no preemptive or other
outstanding rights, options, warrants, conversion rights or similar agreements
or understandings for the purchase or acquisition from any Credit Party or any
of their Subsidiaries of any Stock of any such entity.


 


(c)           Binding
Obligation.  This Agreement is, and
the other Related Transaction Documents when executed and delivered will be, the
legally valid and binding obligations of each of the Credit Parties, each
enforceable against each of such Credit Parties, as applicable, in accordance
with their respective terms except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights


 


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generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability.


 


5.5           Financial
Statements and Projections.


 


(a)           All
Financial Statements concerning Holdings, Borrower and their Subsidiaries which
have been or will hereafter be furnished to Agent pursuant to this Agreement,
including those listed below, have been or will be prepared in accordance with
GAAP consistently applied (except as disclosed therein) and do or will present
fairly in all material respects the financial condition of the entities covered
thereby as at the dates thereof and the results of their operations for the
periods then ended, subject to, in the case of unaudited Financial Statements,
the absence of footnotes and normal year-end adjustments.


 


(i)            The
consolidated balance sheets at December 31, 2004 and the related
statements of income and cash flows of Holdings and its Subsidiaries, for the
Fiscal Year then ended, audited by the Borrower’s Accountants.


 


(ii)           The
consolidated balance sheet at March 31, 2005 and the related statement of
income of Holdings and its Subsidiaries for the three (3) months then
ended.


 


(b)           The
Projections delivered on or prior to the Original Closing Date and the updated
Projections delivered pursuant to Section 4.1(f) represent and
will represent as of the date thereof the good faith best estimate of Holdings
and its senior management (it being understood that no assurance can be made
with respect to actual results).


 


5.6           Intellectual
Property.  Each of the Credit Parties
and its Subsidiaries owns, is licensed to use or otherwise has the right to
use, all Intellectual Property used in or necessary for the conduct of its
business as currently conducted that is material to the condition (financial or
otherwise), business or operations of such Credit Party and its Subsidiaries
and all such Intellectual Property owned by or licensed to the Credit Parties
as of the Amendment and Restatement Date is identified on Schedule 5.6
and fully protected and/or duly and properly registered, filed or issued in the
appropriate office and jurisdictions for such registrations, filings or issuances.  Except as disclosed in Schedule 5.6,
as of the Amendment and Restatement Date, the use of such Intellectual Property
by the Credit Parties and their Subsidiaries and the conduct of their
businesses does not and has not been alleged by any Person to infringe on the
rights of any Person.


 


5.7           Investigations,
Audits, Etc.  As of the Amendment and
Restatement Date, except as set forth on Schedule 5.7, to the best
knowledge of each Credit Party, no Credit Party or any of their Subsidiaries is
the subject of any review or audit by the IRS or any investigation by any other
Governmental Authority concerning the violation or possible violation of any
law.


 


5.8           Employee Matters.  Except as set forth on Schedule 5.8,
as of the Amendment and Restatement Date (a) no Credit Party or Subsidiary
of a Credit Party nor any of their respective employees is subject to any
collective bargaining agreement, (b) no petition for certification or
union election is pending with respect to the employees of any Credit Party or
any of their Subsidiaries and no union or collective bargaining unit has sought
such certification or


 


57





















 


recognition with respect to the
employees of any Credit Party or any of their Subsidiaries, (c) there are
no strikes, slowdowns, work stoppages or controversies pending or, to the
best knowledge of any Credit Party after due inquiry, threatened between any
Credit Party or any of their Subsidiaries and its respective employees, other
than employee grievances arising in the ordinary course of business which could
not reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect and (d) hours worked by and payment made to
employees of each Credit Party and each of their Subsidiaries comply in all
material respects with the Fair Labor Standards Act and each other federal,
state, local or foreign law applicable to such matters.  Except as set forth on Schedule 5.8,
as of the Amendment and Restatement Date, neither Holdings nor any of its
Subsidiaries is party to any material employment contract.


 


5.9           Solvency.  Holdings and each of its Subsidiaries are, on
a consolidated basis, Solvent.


 


5.10         Litigation; Adverse
Facts.  Except as set forth on Schedule 5.10,
there are no judgments outstanding against any Credit Party or any of its
Subsidiaries or affecting any property of any Credit Party or any of its
Subsidiaries that constitute an Event of Default, nor is there any Litigation
pending, or to the best knowledge of any Credit Party threatened, against any
Credit Party or any of its Subsidiaries which Litigation could reasonably be
expected to result in any Material Adverse Effect.


 


5.11         Use of Proceeds;
Margin Regulations.


 


(a)           No
part of the proceeds of any Loan will be used for “buying” or “carrying” “margin
stock” within the respective meanings of such terms under Regulation U of
the Board of Governors of the Federal Reserve System as now and from time to
time hereafter in effect or for any other purpose that violates the provisions
of the regulations of the Board of Governors of the Federal Reserve
System.  If requested by Agent, each
Credit Party will furnish to Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form 0-1,
as applicable, referred to in Regulation U.


 


(b)           Borrower
shall utilize the proceeds of the Loans (including, in the case of clause
(ii), any Incremental Loans), for ongoing working capital purposes and
other general corporate purposes (including financing Capital Expenditures and
Permitted Acquisitions); provided, that the Borrower shall borrow not
more than $10,000,000 of Revolving Loans on the Amendment and Restatement Date
for purposes of repaying a portion of the outstanding Bridge Loans and related
fees and expenses; and provided, further, that proceeds of
Revolving Loans shall not be used to finance Permitted Acquisitions unless
Borrowing Availability shall exceed $37,500,000 on a pro forma basis after
giving effect to such Permitted Acquisition and the incurrence of such
Revolving Loans and/or Letter of Credit Obligations in connection therewith
and, upon satisfaction of the requirements in Section 2.8(e), after
giving effect to any adjustment to Borrowing Availability in respect of such
Permitted Acquisition.


 


5.12         Ownership of Property;
Liens.  As of the Amendment and
Restatement Date, the real property (together with any real property acquired
by any Credit Party after the Amendment and Restatement Date, collectively, the
“Real Estate”) listed in Schedule 5.12 constitutes all of


 


58





















 


the real property owned,
leased, subleased, or used by any Credit Party or any of its Subsidiaries.  Each of the Credit Parties and each of its
Subsidiaries owns good and marketable fee simple title to all of its owned Real
Estate, and valid and marketable leasehold interests in all of its leased Real
Estate, all (as of the Amendment and Restatement Date) as described on Schedule 5.12.  Schedule 5.12 further describes any
Real Estate with respect to which any Credit Party or any of its Subsidiaries
is a lessor, sublessor or assignor as of the Amendment and Restatement
Date.  Each of the Credit Parties and
each of its Subsidiaries also has good and marketable title to, or valid
leasehold interests in, all of its personal property and assets.  As of the Amendment and Restatement Date,
none of the properties and assets of any Credit Party or any of its
Subsidiaries are subject to any Liens other than Permitted Encumbrances, and
there are no facts, circumstances or conditions known to Borrower or any other
Credit Party that may result in any Liens (including Liens arising under
Environmental Laws) other than Permitted Encumbrances against the properties or
assets of any Credit Party or any of its Subsidiaries.  As of the Amendment and Restatement Date, no
portion of any Credit Party’s or any of its Subsidiaries’ Real Estate has
suffered any material damage by fire or other casualty loss that has not
heretofore been repaired and restored in all material respects to its original
condition or otherwise remedied.  As of
the Amendment and Restatement Date, all material permits required to have been
issued or appropriate to enable the Real Estate to be lawfully occupied and
used for all of the purposes for which it is currently occupied and used have
been lawfully issued and are in full force and effect.


 


5.13         Environmental Matters.  Except as set forth in Schedule 5.13,
as of the Amendment and Restatement Date:


 


(a)           to
the knowledge of each Credit Party, the Real Estate is free of contamination
from any Hazardous Material except for such contamination that could not
reasonably be expected to adversely impact the value or marketability of such
Real Estate and that could not reasonably be expected to result in
Environmental Liabilities of the Credit Parties or their Subsidiaries in excess
of $1,500,000 in the aggregate;


 


(b)           no
Credit Party and no Subsidiary of a Credit Party has caused or suffered to
occur any Release of Hazardous Materials on, at, in, under, above, to, from or
about any of their Real Estate, except for such Releases that could not
reasonably be expected to adversely impact the value or marketability of such
Real Estate and that could not reasonably be expect to result in Environmental
Liabilities of the Credit Parties or their Subsidiaries in excess of $1,500,000
in the aggregate;


 


(c)           the
Credit Parties and their Subsidiaries are and have been in compliance with all
Environmental Laws, except for such noncompliance that could not reasonably be
expected to result in Environmental Liabilities of the Credit Parties or their
Subsidiaries in excess of $1,500,000 in the aggregate;


 


(d)           the
Credit Parties and their Subsidiaries have obtained, and are in compliance
with, all Environmental Permits required by Environmental Laws for the
operations of their respective businesses as presently conducted or as proposed
to be conducted, except where the failure to so obtain or comply with such
Environmental Permits could not reasonably


 


59





















 


be expected to result in
Environmental Liabilities of the Credit Parties or their Subsidiaries in excess
of $1,000,000 in the aggregate, and all such Environmental Permits are valid,
uncontested and in good standing;


 


(e)           no
Credit Party and no Subsidiary of a Credit Party is involved in operations or
knows of any facts, circumstances or conditions, including any Releases of
Hazardous Materials, that are likely to result in any Environmental Liabilities
of such Credit Party or Subsidiary which could reasonably be expected to be in
excess of $1,000,000 in the aggregate, and no Credit Party or Subsidiary of a
Credit Party has permitted any current or former tenant or occupant of the Real
Estate to engage in any such operations;


 


(f)            there
is no pending or overtly threatened Litigation arising under any Environmental
Laws or related to any Environmental Permits or Hazardous Material that seeks
damages, penalties, fines, costs or expenses in excess of $1,500,000 in the
aggregate or injunctive relief against, or that alleges criminal misconduct by
any Credit Party or any Subsidiary of a Credit Party;


 


(g)           except
for such matters that have been resolved or could not reasonably be expected to
result in Environmental Liabilities of any Credit Party or any Subsidiary of
any Credit Party in excess of $1,000,000, no notice has been received by any
Credit Party or any Subsidiary of a Credit Party identifying any of them as a “potentially
responsible party” or requesting information under CERCLA or analogous state
statutes, and to the knowledge of the Credit Parties, there are no facts,
circumstances or conditions that may result in any of the Credit Parties or
their Subsidiaries being identified as a “potentially responsible party” under
CERCLA or analogous state statutes; and


 


(h)           the
Credit Parties have made available to Agent copies of all material existing
environmental reports, reviews and audits and all written information
pertaining to actual or potential Environmental Liabilities, in each case
relating to any of the Credit Parties or their Subsidiaries.


 


5.14         ERISA.


 


(a)           Schedule 5.14
lists, as of the Amendment and Restatement Date, all Plans and separately
identifies all Pension Plans, including Title IV Plans, Multiemployer Plans,
ESOPs and Welfare Plans, including all Retiree Welfare Plans.  Copies of all such listed Plans, together
with a copy of the latest form IRS/DOL 5500-series for each such Plan have been
delivered to Agent.  Except with respect
to Multiemployer Plans, each Qualified Plan has received a determination or
opinion letter from the IRS pursuant to which the IRS has determined or opined
that such Qualified Plan is qualified under Section 401 of the IRC and
that the trust created under such Qualified Plan is exempt from tax under the
provisions of Section 501 of the IRC. 
To the best knowledge of each Credit Party, nothing has occurred that
would cause the loss of such qualification or tax-exempt status.  Each Plan is in compliance with the
applicable provisions of ERISA and the IRC, including the timely filing of all
reports required under the IRC or ERISA, including the statement required by 29
CFR Section 2520.104-23.  Neither
any Credit Party nor ERISA Affiliate has failed to make any contribution or pay
any


 


60





















 


amount due as required by
either Section 412 of the IRC or Section 302 of ERISA or the terms of
any such Plan.  To the best knowledge of
each Credit Party, neither any Credit Party nor ERISA Affiliate has engaged in
a “prohibited transaction,” as defined in Section 406 of ERISA and Section 4975
of the IRC, in connection with any Plan, that would subject any Credit Party to
a material tax on prohibited transactions imposed by Section 502(i) of
ERISA or Section 4975 of the IRC.


 


(b)           Except
as set forth in Schedule 5.14, (i) no Title IV Plan has any
Unfunded Pension Liability; (ii) no ERISA Event or event described in Section 4062(e) of
ERISA with respect to any Title IV Plan has occurred or could reasonably be
expected to occur; (iii) there are no pending, or to the knowledge of
Borrower, threatened claims (other than claims for benefits in the normal
course), sanctions, actions or lawsuits, asserted or instituted against any
Plan or any Person as fiduciary or sponsor of any Plan; (iv) no Credit
Party or ERISA Affiliate has incurred or could reasonably be expected to incur
any liability as a result of a complete or partial withdrawal from a
Multiemployer Plan; (v) within the last five years no Title IV Plan of any
Credit Party or ERISA Affiliate has been terminated, whether or not in a “standard
termination” as that term is used in Section 404(b)(1) of ERISA, nor
has any Title IV Plan of any Credit Party or ERISA Affiliate (determined at any
time within the past five years) with Unfunded Pension Liabilities been
transferred outside of the “controlled group” (within the meaning of Section 4001(a)(14)
of ERISA) of any Credit Party or ERISA Affiliate; (vi) except in the case
of any ESOP, Stock of all Credit Parties and their ERISA Affiliates makes up,
in the aggregate, no more than 10% of fair market value of the assets of any
Plan measured on the basis of fair market value as of the latest valuation date
of any Plan; and (vii) no liability under any Title IV Plan has been
satisfied with the purchase of a contract from an insurance company that is not
rated AAA by the S&P or an equivalent rating by another nationally
recognized rating agency.


 


5.15         Brokers.  No broker or finder acting on behalf of any
Credit Party or Affiliate thereof brought about the obtaining, making or
closing of the Loans or the Related Transactions, and no Credit Party or
Affiliate thereof has any obligation to any Person in respect of any finder’s
or brokerage fees in connection therewith.


 


5.16         Deposit Accounts;
Securities Accounts; Other Accounts. 
Schedule 5.16 lists all banks and other financial
institutions at which any Credit Party maintains deposit accounts, securities
accounts or other accounts (including any commodities accounts) as of the
Amendment and Restatement Date, including the Disbursement Account and any
other disbursement accounts, and such Schedule 5.16 correctly
identifies the name, address and telephone number of each depository
institution, securities intermediary or other financial institution, the name
in which the account is held, a description of the purpose of the account, and
the complete account number therefor.


 


5.17         Agreements
and Other Documents.  As of the
Amendment and Restatement Date, each Credit Party has provided to Agent or its
counsel, on behalf of Lenders, accurate and complete copies (or summaries) of
all of the following agreements or documents to which it is subject and each of
which is listed in Schedule 5.17:


 


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(a)           licenses
and permits held by the Credit Parties, the absence of which could reasonably
be expected to have a Material Adverse Effect;


 


(b)           instruments
and documents evidencing any Indebtedness or Guaranteed Indebtedness of such
Credit Party and any Lien granted by such Credit Party with respect thereto;
and


 


(c)           instruments
and agreements evidencing the issuance of any equity securities, warrants,
rights or options to purchase equity securities of such Credit Party.


 


5.18         Insurance.  Schedule 5.18 lists all insurance
policies of any nature maintained, as of the Amendment and Restatement Date,
for current occurrences by each Credit Party, as well as a summary of the key
business terms of each such policy such as deductibles, coverage limits and
term of policy.


 


5.19         Investment
Company Act; Public Utility Holding Company Act.  None of the Credit Parties is an “investment
company” within the meaning of the Investment Company Act of 1940, as amended,
or a “holding company” or a “subsidiary company” of a “holding company” within
the meaning of the Pubic Utility Holding Company Act of 1935, as amended.


 


5.20         Designation
of Debt.


 


(a)           The
Obligations are “Senior Debt” under the Senior Subordinated Notes Documents and
the Senior Secured Notes Documents.


 


(b)           The
Obligations are “Designated Senior Debt” under the Senior Subordinated Notes
Documents and any Permitted Subordinated Indebtedness Documents and no other
Indebtedness or other obligations (other than the Senior Secured Notes and
Indebtedness under any other Second Lien Financing to the extent permitted to
be incurred hereunder) constitute “Designated Senior Debt” under the Senior
Subordinated Notes Documents or the Permitted Senior Subordinated Indebtedness
Documents.


 


(c)           The
Obligations constitute permitted “Priority Lien Debt” (or similar term) under
the Senior Secured Notes Documents and any other Second Lien Financing
Documentation.


 


SECTION 6.

DEFAULT, RIGHTS AND REMEDIES


 


6.1           Event of Default.  “Event of Default” shall mean the occurrence
or existence of any one or more of the following:


 


(a)           Payment.  (i) Failure to pay any installment or
other payment of principal of any Loan when due, or to repay Revolving Loans to
reduce their balance to the maximum amount of Revolving Loans then permitted to
be outstanding or to reimburse any L/C Issuer for any payment made by such L/C
Issuer under or in respect of any Letter of Credit when due, (ii) failure
to pay, within three (3) days after the due date, any interest on any
Loan, any Fee or


 


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any other amount (other than
amounts described in the immediately succeeding clause (iii)) due under
this Agreement or any of the other Loan Documents or (iii) failure to pay
or reimburse Agent, the L/C Issuer or any Lender for any expense payable or
reimbursable by any Credit Party hereunder or under any other Loan Document
within ten (10) days following the date on which such reimbursement or
payment of expenses has become due; or


 


(b)           Default
in Other Agreements.  (i) Any
Credit Party or any of its Subsidiaries fails to pay when due (after giving
effect to any applicable grace period) any principal or interest on
Indebtedness (other than the Loans) or any Contingent Obligations in an amount
in excess of $2,000,000 in the aggregate; or (ii) breach or default of any
Credit Party or any of its Subsidiaries, or the occurrence of any condition or
event, with respect to any Indebtedness (other than the Loans) or any
Contingent Obligations, if the effect of such breach, default or occurrence is
to cause or to permit the holder or holders then to cause, Indebtedness and/or
Contingent Obligations having a principal amount in excess of $2,000,000 in the
aggregate to become or be declared due prior to their stated maturity; or


 


(c)           Breach
of Certain Provisions; Breach of Warranty.


 


(i)            Failure
of any Credit Party to perform or comply with any term or condition contained Section 4
(other than in the case of a failure under Section 4.1(d)(i)) and
such failure continues for five (5) Business Days; or


 


(ii)           Failure
of any Credit Party to perform or comply with any term or condition contained
in Section 3 or Section 4.1(d)(i); or


 


(d)           Borrowing
Base Certificate; Breach of Warranty.


 


(i)            Any
information contained in any Borrowing Base Certificate is untrue or incorrect
in any respect (other than inadvertent, immaterial errors not exceeding
$500,000 in the aggregate in any Borrowing Base Certificate) and such
information is not corrected within five (5) Business Days after the date
on which notice thereof shall have been given to Borrower by Agent or any
Lender; provided, that during such five (5) Business Day period, no
Loans shall be made to Borrower and no Letter of Credit Obligations shall be
incurred; or


 


(ii)           Any
representation or warranty herein or in any Loan Document or in any written
statement, report, financial statement or certificate (other than a Borrowing
Base Certificate) made or delivered to Agent or any Lender by any Credit Party
is untrue or incorrect in any material respect (without duplication of
materiality qualifiers contained therein) as of the date when made or deemed
made; or


 


(e)           Other
Defaults Under Loan Documents.  Any
Credit Party defaults in the performance of or compliance with any term
contained in this Agreement or the other Loan Documents (other than occurrences
described in other provisions of this Section 6.1 for which a
different grace or cure period is specified, or for which no cure period is
specified and which constitute immediate Events of Default) and such default is
not remedied or waived within thirty (30) days after the earlier of (i) receipt
by Borrower of notice thereof from Agent or the


 


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Requisite Lenders of such
default or (ii) actual knowledge of Borrower or any other Credit Party of
such default; or


 


(f)            Involuntary
Bankruptcy; Appointment of Receiver, Etc. 
(i) A court enters a decree or order for relief with respect to any
Credit Party in an involuntary case under the Bankruptcy Code, which decree or
order is not stayed or other similar relief is not granted under any applicable
federal or state law; or (ii) the continuance of any of the following
events for forty-five (45) days unless dismissed, bonded or discharged:  (A) an involuntary case is commenced
against any Credit Party, under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect; or (B) a decree or order of a
court for the appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over any Credit Party, or over all or a
substantial part of its property, is entered; or (C) a receiver, trustee
or other custodian is appointed without the consent of a Credit Party, for all
or a substantial part of the property of the Credit Party; or


 


(g)           Voluntary
Bankruptcy; Appointment of Receiver, Etc. 
(i) any Credit Party commences a voluntary case under the
Bankruptcy Code, or consents to the entry of an order for relief in an
involuntary case or to the conversion of an involuntary case to a voluntary
case under any such law or consents to the appointment of or taking possession
by a receiver, trustee or other custodian for all or a substantial part of its
property; or (ii) any Credit Party makes any assignment for the benefit of
creditors; or (iii) the Board of Directors of any Credit Party adopts any
resolution or otherwise authorizes action to approve any of the actions
referred to in this Section 6.1(g); or


 


(h)           Judgment
and Attachments.  Any money judgment,
writ or warrant of attachment, or similar process (other than those described
elsewhere in this Section 6.1) involving an amount in excess of
$2,000,000 in the aggregate (to the extent not adequately covered by insurance
in Agent’s sole discretion as to which the insurance company has acknowledged
coverage) is entered or filed against one or more of the Credit Parties or any
of their respective assets and remains undischarged, unvacated, unbonded or
unstayed for a period of thirty (30) days or in any event later than five (5) Business
Days prior to the date of any proposed sale thereunder; or


 


(i)            Dissolution.  Any order, judgment or decree is entered
against any Credit Party decreeing the dissolution or split up of such Credit
Party and such order remains undischarged or unstayed for a period in excess of
fifteen (15) days; or


 


(j)            Solvency.  Borrower ceases (or the Credit Parties taken
as a whole cease) to be Solvent, fails to pay its debts as they become due or
admits in writing its present or prospective inability to pay its debts as they
become due; or


 


(k)           Invalidity
of Loan Documents.  Any of the Loan
Documents for any reason, other than a partial or full release or termination
in accordance with the terms thereof, ceases to be in full force and effect or
is declared to be null and void, or any Credit Party denies that it has any
further liability under any Loan Documents to which it is party, or gives
notice to such effect; or


 


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(l)            Change
of Control.  A Change of Control
occurs; or


 


(m)          Subordinated
Indebtedness; Intercreditor Arrangements.


 


(i)            The
subordination provisions set forth in the Senior Subordinated Notes Indenture,
any other Senior Subordinated Notes Document or any Permitted Subordinated
Indebtedness Document shall, in whole or in part, cease to be effective or
cease to be legally valid, binding and enforceable against the holders of any
such Subordinated Indebtedness; or


 


(ii)           The
failure of any Credit Party to comply with the terms of any subordination
agreement or any subordination provisions of any note or other document running
to the benefit of Agent or Lenders or governing any Subordinated Indebtedness;
or


 


(iii)          The
failure of any Credit Party or any of its Subsidiaries to comply with the terms
of the Intercreditor Agreement; or


 


(iv)          The
Intercreditor Agreement shall, in whole or in part, cease to be effective or
cease to be legally valid, binding and enforceable against the Junior
Collateral Agent or any other agent, trustee, collateral trustee or holder with
respect to any Second Lien Financing; or


 


(n)           Uninsured
Losses.  Any loss (other than a loss
relating to an Account), theft, damage or destruction of any of the Collateral
not fully covered by insurance (subject to customary deductibles as Agent shall
have permitted) if the aggregate amount of such loss that is not covered by
insurance exceeds $2,000,000; provided, that the occurrence of any such
loss shall not constitute an Event of Default if the Agent has determined, in
its reasonable discretion, that Borrower, after giving effect to the
destruction of such Collateral, has adequate Borrowing Availability.


 


6.2           Suspension or
Termination of Commitments.  Upon the
occurrence of any Default or Event of Default, Agent may, and at the request of
Requisite Lenders, Agent shall, without notice or demand, immediately suspend
or terminate all or any portion of Lenders’ obligations to make additional
Loans or issue or cause to be issued Letters of Credit under the Revolving Loan
Commitment; provided that, in the case of a Default, if the subject
condition or event is waived by Requisite Lenders or cured within any
applicable grace or cure period, the Revolving Loan Commitment shall be
reinstated.


 


6.3           Acceleration and
other Remedies.  Upon the occurrence
of any Event of Default described in Sections 6.1(f) or 6.1(g),
the Revolving Loan Commitments shall be immediately terminated and all of the
Obligations, including the Revolving Loans, Swing Line Loans and Letter of
Credit Obligations, shall automatically become immediately due and payable,
without presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other requirements of any kind, all of which are hereby
expressly waived by each Credit Party, and the Revolving Loan Commitments shall
thereupon terminate.  Upon the occurrence
and during the continuance of any other Event of Default, Agent may, and at the
request of the Requisite Lenders, Agent shall, by written notice to Borrower (a) reduce
the aggregate amount of the Revolving Loan Commitments from time to time, (b) declare
all or any portion of the Loans and


 


65





















 


all or any portion of the other
Obligations to be, and the same shall forthwith become, immediately due and
payable together with accrued interest thereon, (c) terminate all or any
portion of the obligations of Agent, L/C Issuers and Lenders to make Revolving
Credit Advances and issue Letters of Credit, (d) demand that Borrower
immediately delivers cash or a standby letter of credit (in form and substance
and from an issuer satisfactory to Agent) to Agent for the benefit of L/C
Issuers (and Borrower shall then immediately so deliver) in an amount equal to
105% of the aggregate outstanding Letter of Credit Obligations and (e) exercise
any other remedies which may be available under the Loan Documents or
applicable law.  Borrower hereby grants
to Agent, for the benefit of L/C Issuers and each Lender with a participation
in any Letters of Credit then outstanding, a security interest in such cash
collateral to secure all of the Letter of Credit Obligations.  Any such cash collateral shall be made
available by Agent to L/C Issuers to reimburse L/C Issuers for payments of
drafts drawn under such Letters of Credit and any Fees, Charges and expenses of
L/C Issuers with respect to such Letters of Credit and the unused portion
thereof, after all such Letters of Credit shall have expired or been fully
drawn upon, shall be applied to repay any other Obligations.  After all such Letters of Credit shall have
expired or been fully drawn upon and all Obligations shall have been satisfied
and paid in full, the balance, if any, of such cash collateral shall be
returned to Borrower.  Borrower shall
from time to time execute and deliver to Agent such further documents and
instruments as Agent may request with respect to such cash collateral.


 


6.4           Performance by Agent.  If any Credit Party shall fail to perform any
covenant, duty or agreement contained in any of the Loan Documents, Agent may
perform or attempt to perform such covenant, duty or agreement on behalf of
such Credit Party after the expiration of any cure or grace periods set forth
herein.  In such event, such Credit Party
shall, at the request of Agent, promptly pay any amount reasonably expended by
Agent in such performance or attempted performance to Agent, together with
interest thereon at the highest rate of interest in effect upon the occurrence
of an Event of Default as specified in Section 1.2(d) from the
date of such expenditure until paid. 
Notwithstanding the foregoing, it is expressly agreed that Agent shall
not have any liability or responsibility for the performance of any obligation
of any Credit Party under this Agreement or any other Loan Document.


 


6.5           Application of
Proceeds.  Notwithstanding anything
to the contrary contained in this Agreement, upon the occurrence and during the
continuance of an Event of Default:


 


(a)           Borrower
irrevocably waives the right to direct the application of any and all payments
at any time or times thereafter received by Agent from or on behalf of
Borrower, and Agent shall have the continuing and exclusive right to apply and
to reapply any and all payments received at any time or times after the
occurrence and during the continuance of an Event of Default against the
Obligations in such manner as Agent may deem advisable notwithstanding any
previous application by Agent; and


 


(b)           in
the absence of a specific determination by Agent with respect thereto in
accordance with clause (a) above, the proceeds of any sale of,
or other realization upon, all or any part of the Collateral shall be
applied:  first, to all Fees,
costs and expenses incurred by or owing to Agent and any Lender with respect to
this Agreement, the other Loan Documents or the Collateral; second, to
accrued and unpaid interest on the Obligations (including any interest


 


66





















 


which but for the provisions of
the Bankruptcy Code, would have accrued on such amounts); third, to the
principal amount of the Obligations outstanding (other than Cash Management
Obligations and Obligations pursuant to Related Swap Contracts); and fourth
to any other Obligations of Borrower owing to Agent or any Lender under the
Loan Documents or to any Secured Party in respect of Cash Management
Obligations and/or Related Swap Contracts. 
Any balance remaining shall be delivered to Borrower or to whomever may
be lawfully entitled to receive such balance or as a court of competent
jurisdiction may direct.


 


SECTION 7.

CONDITIONS TO LOANS


 


The obligations of Lenders and L/C Issuers to
make Loans and to issue or cause to be issued Letters of Credit are subject to
satisfaction of all of the applicable conditions set forth below.


 


7.1           Conditions
to Initial Loans.  The obligations of
Lenders and L/C Issuers to make the initial Loans and to issue or cause to be
issued Letters of Credit on the Amendment and Restatement Date are, in addition
to the conditions precedent specified in Section 7.2, subject to
the delivery of all documents listed on, the taking of all actions set forth on
and the satisfaction of all other conditions precedent listed in the Closing
Checklist attached hereto as Annex C, all in form and substance, or in a
manner, satisfactory to Agent and Lenders.


 


7.2           Conditions to All
Loans.  Except as otherwise expressly
provided herein, no Lender or L/C Issuer shall be obligated to fund any Advance
or incur any Letter of Credit Obligation, if, as of the date thereof (the “Funding
Date”):


 


(a)           any
representation or warranty by any Credit Party contained herein or in any other
Loan Document is untrue or incorrect in any material respect (without
duplication of any materiality qualifier contained therein) as of such date,
except to the extent that such representation or warranty expressly relates to
an earlier date, in which case, as of such earlier date, and Agent or Requisite
Lenders have determined not to make such Advance or incur such Letter of Credit
Obligation as a result of the fact that such warranty or representation is
untrue or incorrect;


 


(b)           any
Default or Event of Default has occurred and is continuing or would result
after giving effect to any Advance (or the incurrence of any Letter of Credit
Obligation), and Agent or Requisite Lenders shall have determined not to make
any Advance or incur any Letter of Credit Obligation as a result of that
Default or Event of Default; or


 


(c)           after
giving effect to any Advance (or the incurrence of any Letter of Credit
Obligations), the outstanding amount of the aggregate Revolving Loan would
exceed remaining Borrowing Availability (except as provided in Section 1.1(a)(ii)).


 


The request and acceptance by Borrower of the proceeds of any Advance,
the incurrence of any Letter of Credit Obligations or the conversion or
continuation of any Loan into, or as, a LIBOR Loan shall be deemed to
constitute, as of the date thereof, (i) a representation and warranty by
Borrower that the conditions in this Section 7.2 have been
satisfied and (ii) a reaffirmation by


 


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Borrower of the granting and continuance of Agent’s Liens, on behalf of
itself and the other Secured Parties, pursuant to the Collateral Documents.


 


SECTION 8.

ASSIGNMENT AND PARTICIPATION


 


8.1           Assignment
and Participations.


 


(a)           Subject
to the terms of this Section 8.1, any Lender may make an assignment
to a Qualified Assignee of, or sale of participations in, at any time or times,
the Loan Documents, Loans, Letter of Credit Obligations and any Revolving Loan
Commitment or any portion thereof or interest therein, including any Lender’s
rights, title, interests, remedies, powers or duties thereunder.  Any assignment by a Lender shall:  (i) require the consent of Agent (which
consent shall not be unreasonably withheld or delayed with respect to a
Qualified Assignee) and the execution of an assignment agreement (an “Assignment
Agreement” substantially in the form attached hereto as Exhibit 8.1
and otherwise in form and substance reasonably satisfactory to, and
acknowledged by, Agent); (ii) be conditioned on such assignee Lender
representing to the assigning Lender and Agent that it is purchasing the
applicable Loans to be assigned to it for its own account, for investment
purposes and not with a view to the distribution thereof; (iii) after
giving effect to any such partial assignment, the assignee Lender shall have
Commitments in an amount at least equal to $5,000,000 and the assigning Lender
shall have retained Commitments in an amount at least equal to $5,000,000
unless such partial assignment, together with any additional substantially
contemporaneous assignments by such Lender, results, in the aggregate, in an
assignment of the total Commitment of such Lender; (iv) require a payment
to Agent of an assignment fee of $3,500 and (v) so long as no Event of
Default has occurred and is continuing, require the consent of Borrower, which
shall not be unreasonably withheld or delayed and shall be deemed granted if
not objected to within three (3) Business Days following notice thereof to
Borrower; provided that no such consent of the Borrower shall be
required for an assignment to a Lender meeting the requirements of clause (a) of
the definition of Qualified Assignee. 
Notwithstanding the above, Agent may in its sole and absolute discretion
permit any assignment by a Lender to a Person or Persons that are not Qualified
Assignees (subject to Borrower’s consent to the extent required above).  In the case of an assignment by a Lender
under this Section 8.1, the assignee shall have, to the extent of
such assignment, the same rights, benefits and obligations as all other Lenders
hereunder.  The assigning Lender shall be
relieved of its obligations hereunder with respect to its Revolving Loan
Commitments or assigned portion thereof from and after the date of such
assignment.  Borrower hereby acknowledges
and agrees that any assignment shall give rise to a direct obligation of
Borrower to the assignee and that the assignee shall be considered to be a “Lender.”  In all instances, each Lender’s liability to
make Loans hereunder shall be several and not joint and shall be limited to
such Lender’s Pro Rata Share of the Revolving Loan Commitment.  In the event Agent or any Lender assigns or
otherwise transfers all or any part of the Obligations, Agent or any such
Lender shall so notify Borrower and Borrower shall, upon the request of Agent
or such Lender, execute new Notes in exchange for the Notes, if any, being
assigned.  Notwithstanding the foregoing
provisions of this Section 8.1(a), (a) any Lender may at any
time pledge the Obligations held by it and such Lender’s rights under this
Agreement and the other Loan Documents to a Federal Reserve Bank, (b) any
Lender that is an investment fund may assign the Obligations held by it and such


 


68





















 


Lender’s rights under this
Agreement and the other Loan Documents to another investment fund managed by
the same investment advisor or pledge such Obligations and rights to a trustee
for the benefit of its investors or holders of obligations of such Lender and (c) any
Lender may assign the Obligations to an Affiliate of such Lender or to a Person
that is a Lender prior to the date of such assignment.


 


(b)           Any
participation by a Lender of all or any part of its Revolving Loan Commitments
shall be made with the understanding that all amounts payable by Borrower
hereunder shall be determined as if that Lender had not sold such
participation, and that the holder of any such participation shall not be entitled
to require such Lender to take or omit to take any action hereunder except
actions directly affecting (i) any reduction in the principal amount of,
or interest rate or Fees payable with respect to, any Loan in which such holder
participates, (ii) any extension of the scheduled amortization of the
principal amount of any Loan in which such holder participates or the final
maturity date thereof, and (iii) any release of all or substantially all
of the Collateral (other than in accordance with the terms of this Agreement,
the Collateral Documents or the other Loan Documents).  Solely for purposes of Sections 1.11,
1.12, 8.3 and 9.1, Borrower acknowledges and agrees that a
participation shall give rise to a direct obligation of Borrower to the
participant and the participant shall be considered to be a “Lender.”  Except as set forth in the preceding sentence
no Borrower or any other Credit Party shall have any obligation or duty to any
participant.  Neither Agent nor any
Lender (other than the Lender selling a participation) shall have any duty to
any participant and may continue to deal solely with the Lender selling a
participation as if no such sale had occurred.


 


(c)           Except
as expressly provided in this Section 8.1, no Lender shall, as
between Borrower and that Lender, or Agent and that Lender, be relieved of any
of its obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or granting of participation in, all or any part of the Loans,
the Notes or other Obligations owed to such Lender.


 


(d)           Each
Credit Party shall assist each Lender permitted to sell assignments or
participations under this Section 8.1 as required to enable the
assigning or selling Lender to effect any such assignment or participation,
including the execution and delivery of any and all agreements, Notes and other
documents and instruments as shall be requested and (i) in connection with
the primary syndication of the Loans and the Revolving Loan Commitments, the
prompt preparation of informational materials for, and the participation of
management in meetings with, potential assignees or participants, all on a
timetable established by Agent in its sole discretion and (ii) thereafter,
subject to Section 2.3, providing reasonable access to information
and senior management of each Credit Party as Agent may reasonably
request.  Each Credit Party executing
this Agreement shall certify the correctness, completeness and accuracy of all
descriptions of the Credit Parties and their respective affairs contained in
any selling materials provided by it and all other information provided by it
and included in such materials, except that any Projections delivered by
Borrower shall only be certified by Borrower as having been prepared by
Borrower in compliance with the representations contained in Section 5.5.  Agent shall maintain, on behalf of Borrower,
at the Agent’s Office a “register” for recording the name, address, commitment
and Loans owing to each Lender (including assignees) and the assignment of the
Loan Documents, Loans, Letter of Credit Obligations and any Revolving Loan
Commitment or any portion thereof or interest therein, including any Lender’s
rights, title,


 


69





















 


interests, remedies, powers or
duties thereunder.  The entries in such
register shall be presumptive evidence of the amounts due and owing to each
Lender in the absence of manifest error. 
Borrower, Agent and each Lender may treat each Person whose name is
recorded in such register pursuant to the terms hereof as a Lender for all
purposes of this Agreement.  The register
described herein shall be available for inspection by Borrower and any Lender,
at any reasonable time upon reasonable prior notice.


 


(e)           A
Lender may furnish any information concerning Credit Parties in the possession
of such Lender from time to time to assignees and participants (including
prospective assignees and participants); provided that such Lender shall
obtain from assignees or participants confidentiality covenants substantially equivalent
to those contained in Section 9.13.


 


(f)            So
long as no Event of Default has occurred and is continuing, no Lender shall
assign or sell participations in any portion of its Loans or Commitments to a
potential Lender or participant, if, as of the date of the proposed assignment
or sale, the assignee Lender or participant would be subject to capital
adequacy or similar requirements under Section 1.11(a), increased
costs or an inability to fund LIBOR Loans under Section 1.11(b), or
withholding taxes in accordance with Section 1.12.


 


8.2           Agent.


 


(a)           Appointment.  Each Lender hereby designates and appoints GE
Capital as its Agent and as Agent for purposes of perfection under the Loan
Documents and in connection with the Related Swap Contracts for its Affiliates
that are Secured Parties, in each case under this Agreement and the other Loan
Documents and Related Swap Contracts, and each Lender hereby irrevocably
authorizes (for itself and on behalf of its Affiliates that are Secured
Parties) Agent to execute and deliver the Collateral Documents and to take such
action or to refrain from taking such action on its behalf under the provisions
of this Agreement and the other Loan Documents and to exercise such powers as
are set forth herein or therein, together with such other powers as are
reasonably incidental thereto.  Agent is
authorized and empowered to amend, modify, or waive any provisions of this
Agreement or the other Loan Documents on behalf of Lenders and the other
Secured Parties subject to the requirement that certain of Lenders’ consent be
obtained in certain instances as provided in this Section 8.2 and Section 9.2.  The provisions of this Section 8.2
are solely for the benefit of Agent, Lenders and the Secured Parties and
neither Borrower nor any other Credit Party shall have any rights as a third
party beneficiary of any of the provisions hereof.  In performing its functions and duties under
this Agreement, Agent shall act solely as agent of Lenders and the Secured
Parties and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for Borrower or
any other Credit Party.  Agent may
perform any of its duties hereunder, or under the Loan Documents, by or through
its agents or employees.


 


(b)           Nature
of Duties.  The duties of Agent shall
be mechanical and administrative in nature. 
Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any Lender or any other Secured Party.  Nothing in this Agreement,  any of the Loan Documents or any Related Swap
Contract, express or implied, is intended to or shall be construed to impose
upon Agent any obligations in respect of this Agreement, any of the


 


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Loan Documents or any Related
Swap Contract, except as expressly set forth herein or therein.  Each Lender and each other Secured Party
shall make its own independent investigation of the financial condition and
affairs of each Credit Party in connection with the extension of credit
hereunder or the other Loan Documents and shall make its own appraisal of the
creditworthiness of each Credit Party, and Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any
Lender or any other Secured Party with any credit or other information with
respect thereto (other than as expressly required herein).  If Agent seeks the consent or approval of any
Lenders to the taking or refraining from taking any action hereunder, then
Agent shall send notice thereof to each Lender. 
Agent shall promptly notify each Lender any time that the Requisite
Lenders or Supermajority Lenders have instructed Agent to act or refrain from
acting pursuant hereto.


 


(c)           Rights,
Exculpation, Etc.  Neither Agent nor
any of its officers, directors, employees or agents shall be liable to any
Lender or any other Secured Party for any action taken or omitted by them
hereunder or under any of the Loan Documents, or in connection herewith or
therewith, except that Agent shall be liable to the extent of its own gross
negligence or willful misconduct as determined by a final non-appealable order
by a court of competent jurisdiction. 
Agent shall not be liable for any apportionment or distribution of
payments made by it in good faith and if any such apportionment or distribution
is subsequently determined to have been made in error the sole recourse of any
Lender or any other Secured Party to whom payment was due but not made, shall
be to recover from other Lenders and/or Secured Parties, as applicable, any
payment in excess of the amount to which they are determined to be entitled
(and such other Lenders (for itself and on behalf of its Affiliates that are
Secured Parties) hereby agree to return to such Lender any such erroneous payments
received by them).  In no event shall
Agent be liable for punitive, special, consequential, incidental, exemplary or
other similar damages.  In performing its
functions and duties hereunder, Agent shall exercise the same care which it
would in dealing with loans for its own account, but neither Agent nor any of
its agents or representatives shall be responsible to any Lender for any
recitals, statements, representations or warranties herein or for the
execution, effectiveness, genuineness, validity, enforceability,
collectibility, or sufficiency of this Agreement or any of the Loan Documents
or the transactions contemplated thereby, or for the financial condition of any
Credit Party.  Agent shall not be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any of the Loan
Documents or the financial condition of any Credit Party, or the existence or
possible existence of any Default or Event of Default.  Agent may at any time request instructions
from Requisite Lenders, Supermajority Lenders or all affected Lenders with
respect to any actions or approvals which by the terms of this Agreement or of
any of the Loan Documents Agent is permitted or required to take or to grant.  If such instructions are promptly requested,
Agent shall be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability whatsoever to any
Person for refraining from any action or withholding any approval under any of
the Loan Documents until it shall have received such instructions from the
Requisite Lenders, Supermajority Lenders or such other portion of the Lenders
as shall be prescribed by this Agreement. 
Without limiting the foregoing, no Secured Party shall have any right of
action whatsoever against Agent as a result of Agent acting or refraining from
acting under this Agreement, any of the other Loan Documents or any Related
Swap Contract in accordance with the instructions of Requisite Lenders,
Supermajority Lenders or all affected Lenders, as


 


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applicable; and,
notwithstanding the instructions of Requisite Lenders, Supermajority Lenders or
all affected Lenders, as applicable, Agent shall have no obligation to take any
action if it believes, in good faith, that such action is deemed to be illegal
by Agent or exposes Agent to any liability for which it has not received
satisfactory indemnification in accordance with Section 8.2(e).


 


(d)           Reliance.  Agent shall be entitled to rely, and shall be
fully protected in relying, upon any written or oral notices, statements,
certificates, orders or other documents or any telephone message or other
communication (including any writing, telex, fax or telegram) believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person, and with respect to all matters pertaining to this Agreement
or any of the Loan Documents and its duties hereunder or thereunder.  Agent shall be entitled to rely upon the
advice of legal counsel, independent accountants, and other experts selected by
Agent in its sole discretion.


 


(e)           Indemnification.  Lenders will reimburse and indemnify Agent
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, attorneys’ fees and expenses), advances or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against Agent in any way relating to or arising out of this Agreement, any of
the Loan Documents or any Related Swap Contract or any action taken or omitted
by Agent under this Agreement, any of the Loan Documents or any Related Swap
Contract in proportion to each Lender’s Pro Rata Share, but only to the extent
that any of the foregoing is not reimbursed by Borrower; provided, however,
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, advances or disbursements to the extent resulting from Agent’s gross
negligence or willful misconduct as determined by a final non-appealable order
by a court of competent jurisdiction.  If
any indemnity furnished to Agent for any purpose shall, in the opinion of
Agent, be insufficient or become impaired, Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against even
if so directed by the Requisite Lenders, Supermajority Lenders or such other
portion of the Lenders as shall be prescribed by this Agreement until such
additional indemnity is furnished.  The
obligations of Lenders under this Section 8.2(e) shall
survive the payment in full of the Obligations and the termination of this Agreement.


 


(f)            GE
Capital Individually.  With respect
to its Revolving Loan Commitments hereunder, GE Capital shall have and may
exercise the same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender.  The terms “Lenders”, “Requisite
Lenders”, “Supermajority Lenders” or any similar terms shall, unless the
context clearly otherwise indicates, include GE Capital in its individual
capacity as a Lender or one of the Requisite Lenders, or Supermajority
Lenders.  GE Capital, either directly or
through strategic affiliations, may lend money to, acquire equity or other
ownership interests in, provide advisory services to and generally engage in
any kind of banking, trust or other business with any Credit Party as if it
were not acting as Agent pursuant hereto and without any duty to account
therefor to Lenders.  GE Capital, either
directly or through strategic affiliations, may accept fees and other
consideration from any Credit Party for services in connection with this
Agreement or otherwise without having to account for the


 


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same to Lenders.  Each Lender acknowledges that GE Capital
holds or may hold certain Indebtedness of one or more of the Credit Parties and
acknowledges the potential conflict of interest of GE Capital, as Agent and as
a Lender and as a holder of such Indebtedness of one or more of the Credit
Parties and consents thereto.


 


(g)           Successor
Agent.


 


(i)            Resignation.  Agent may resign from the performance of all
its agency functions and duties hereunder at any time by giving at least thirty
(30) Business Days’ prior written notice to Borrower and Lenders.  Such resignation shall take effect upon the
acceptance by a successor Agent of appointment pursuant to clause (ii) below
or as otherwise provided in clause (ii) below.


 


(ii)           Appointment
of Successor.  Upon any such notice
of resignation pursuant to clause (i) above, Requisite Lenders
shall appoint a successor Agent which, unless an Event of Default has occurred
and is continuing, shall be reasonably acceptable to Borrower.  If a successor Agent shall not have been so
appointed within the thirty (30) Business Day period referred to in clause (i) above,
the retiring Agent, upon notice to Borrower, shall then appoint a successor
Agent who shall serve as Agent until such time, if any, as Requisite Lenders
appoint a successor Agent as provided above.


 


(iii)          Successor
Agent.  Upon the acceptance of any
appointment as Agent under the Loan Documents by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under the Loan
Documents.  After any retiring Agent’s
resignation as Agent, the provisions of this Section 8.2 shall
continue to inure to its benefit as to any actions taken or omitted to be taken
by it in its capacity as Agent.


 


(h)           Collateral
Matters.


 


(i)            Release
of Collateral.  Each Secured Party
hereby irrevocably authorizes Agent, at its option and in its discretion, to
release any Lien granted to or held by Agent upon any Collateral and in
connection therewith, to deliver to Borrower or the applicable Credit Party
such termination statements, mortgage releases and other documents necessary or
appropriate to evidence the termination of the Liens securing payment of the
Obligations, in each case (A) upon payment in full in cash and
satisfaction of all of the Obligations (other than contingent indemnification
Obligations to the extent no unsatisfied claim has been asserted), termination
of the Revolving Loan Commitments and the provision of cash collateral (or
back-to-back standby letters of credit in form and substance and from an issuer
satisfactory to Agent) for all Letter of Credit Obligations (in an amount equal
to 105% of the amount thereof) in a manner satisfactory to Agent as provided in
this Agreement, and a release of all claims against Agent and the Secured
Parties, and so long as no suits, actions proceedings, or claims are pending or
threatened against any Indemnitee asserting any damages, losses or liabilities
that are indemnified liabilities hereunder), (B) constituting property
being sold or disposed of if Borrower certifies to Agent that the sale or
disposition is made in compliance with the provisions


 


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of this Agreement (and Agent
may rely in good faith conclusively on any such certificate, without further
inquiry) or (C) on assets of a Subsidiary of a Credit Party, if all of the
Stock of such Credit Party or Subsidiary is sold or otherwise Disposed to a
Person that is not an Affiliate of a Credit Party in a sale or other Asset Disposition
permitted under Section 3.7.


 


(ii)           Confirmation
of Authority; Execution of Releases. 
Without in any manner limiting Agent’s authority to act without any
specific or further authorization or consent by the Secured Parties (as set
forth in Section 8.2(h)(i)), each Secured Party agrees to confirm
in writing, upon request by Agent or Borrower, the authority to release any
Collateral conferred upon Agent under clauses (A), (B) and (C) of Section 8.2(h)(i) above.  Upon receipt by Agent of any required confirmation
from the Requisite Lenders of its authority to release any particular item or
types of Collateral, and upon at least ten (10) Business Days’ prior
written request by Borrower, Agent shall (and is hereby irrevocably authorized
by the Secured Parties to) execute such documents as may be necessary to
evidence the release of the Liens granted to Agent upon such Collateral; provided,
however, that (A) Agent shall not be required to execute any such
document on terms which, in Agent’s opinion, would expose Agent to liability or
create any obligation or entail any consequence other than the release of such
Liens without recourse or warranty, and (B) such release shall not in any
manner discharge, affect or impair the Obligations or any Liens upon (or obligations
of any Credit Party, in respect of), all interests retained by any Credit
Party, including the proceeds of any sale, all of which shall continue to
constitute part of the Collateral.


 


(iii)          Absence
of Duty.  Agent shall have no
obligation whatsoever to any Secured Party or any other Person to assure that
the property covered by the Collateral Documents exists or is owned by Borrower
or any other Credit Party or is cared for, protected or insured or has been
encumbered or that the Liens granted to Agent (for the benefit of itself and
the other Secured Parties) have been properly or sufficiently or lawfully
created, perfected, protected or enforced or are entitled to any particular
priority, or to exercise at all or in any particular manner or under any duty
of care, disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to Agent in this Section 8.2(h) or
in any of the Loan Documents, it being understood and agreed that in respect of
the property covered by the Collateral Documents or any act, omission or event
related thereto, Agent may act in any manner it may deem appropriate, in its
discretion, given Agent’s own interest in property covered by the Collateral
Documents as one of the Lenders and that Agent shall have no duty or liability
whatsoever to any of the other Lenders, provided that Agent shall
exercise the same care which it would in dealing with property for its own
account.


 


(i)            Agency
for Perfection.  Agent and each
Lender (for itself and the benefit of itself and its Affiliates that are
Secured Parties) hereby appoint Agent and each other Secured Party as agent for
the purpose of perfecting Agent’s Lien on and security interest in assets
which, in accordance with the Code in any applicable jurisdiction, can be
perfected by possession or control. 
Should any Secured Party (other than Agent) obtain possession or control
of any such assets, such Secured Party shall notify Agent thereof, and, promptly
upon Agent’s request therefor, shall deliver such assets to Agent or in
accordance with Agent’s instructions or transfer control to Agent in accordance
with Agent’s instructions.  Each Secured
Party agrees that it will not have any right individually to enforce or seek to
enforce any Collateral Document or to


 


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realize upon any collateral
security for the Loans unless instructed to do so by Agent in writing, it being
understood and agreed that such rights and remedies may be exercised only by
Agent.


 


(j)            Notice
of Default.  Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default except with respect to defaults in the payment of principal, interest
and Fees required to be paid to Agent for the account of Lenders, unless Agent
shall have received written notice from a Lender or Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a “notice of default”.  Agent
will use reasonable efforts to notify each Lender of its receipt of any such
notice, unless such notice is with respect to defaults in the payment of
principal, interest and fees, in which case Agent will notify each Lender of
its receipt of such notice.  Agent shall
take such action with respect to such Default or Event of Default as may be
requested by Requisite Lenders in accordance with Section 6.  Unless and until Agent has received any such
request, Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default or Event of Default as it
shall deem advisable or in the best interests of Lenders.


 


(k)           Lender
Actions Against Collateral.  Each
Secured Party agrees that it will not take any action, nor institute any actions
or proceedings, with respect to the Loans, against Borrower or any Credit Party
hereunder or under the other Loan Documents or under any Related Swap Contract
or against any of the Real Estate encumbered by Mortgages without the consent
of the Requisite Lenders.  With respect
to any action by Agent to enforce the rights and remedies of Agent and the
Lenders under this Agreement, the other Loan Documents or any Related Swap
Contract, each Secured Party hereby consents to the jurisdiction of the court
in which such action is maintained, and agrees to deliver its Notes to Agent to
the extent necessary to enforce the rights and remedies of Agent for the
benefit of the Secured Parties under the Mortgages in accordance with the
provisions hereof.


 


8.3           Set Off and Sharing
of Payments.  In addition to any
rights now or hereafter granted under applicable law and not by way of
limitation of any such rights, during the continuance of any Event of Default,
each Lender and each Affiliate of a Lender is hereby authorized by Borrower at
any time or from time to time, with reasonably prompt subsequent notice to
Borrower (any prior or contemporaneous notice being hereby expressly waived) to
set off and to appropriate and to apply any and all (i) balances held by
such Lender or Affiliate at any of its offices for the account of Borrower or
any of its Subsidiaries (regardless of whether such balances are then due to
Borrower or its Subsidiaries), and (ii) other property at any time held or
owing by such Lender or Affiliate to or for the credit or for the account of
Borrower or any of its Subsidiaries, against and on account of any of the
Obligations; except that no Lender or Affiliate shall exercise any such right
without the prior written consent of Agent. 
Any Lender exercising a right to set off (including any set off by an
Affiliate of such Lender) shall purchase for cash (and the other Lenders shall
sell) interests in each of such other Lender’s Pro Rata Share of the
Obligations as would be necessary to cause all Lenders to share the amount so
set off with each other Lender or Affiliate in accordance with their respective
Pro Rata Shares.  Borrower agrees, to the
fullest extent permitted by law, that any Lender (itself or by its Affiliates)
may exercise its right to set off with respect to amounts in excess of its Pro
Rata Share of the


 


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Obligations and upon doing so
shall deliver such amount so set off to the Agent for the benefit of all
Lenders in accordance with their Pro Rata Shares.


 


8.4           Disbursement of
Funds.  Agent may, on behalf of
Lenders, disburse funds to Borrower for Loans requested.  Each Lender shall reimburse Agent on demand
for all funds disbursed on its behalf by Agent, or if Agent so requests, each
Lender will remit to Agent its Pro Rata Share of any Loan before Agent
disburses same to Borrower.  If Agent
elects to require that each Lender make funds available to Agent prior to a
disbursement by Agent to Borrower, Agent shall advise each Lender by telephone
or fax of the amount of such Lender’s Pro Rata Share of the Loan requested by
Borrower no later than 1:00 p.m. (New York time) on the Funding Date
applicable thereto, and each such Lender shall pay Agent such Lender’s Pro Rata
Share of such requested Loan, in same day funds, by wire transfer to Agent’s
account specified on Annex E on such Funding Date.  If any Lender fails to pay the amount of its
Pro Rata Share within one (1) Business Day after Agent’s demand, Agent
shall promptly notify Borrower, and Borrower shall immediately repay such
amount to Agent.  Any repayment required
pursuant to this Section 8.4 shall be without premium or
penalty.  Nothing in this Section 8.4
or elsewhere in this Agreement or the other Loan Documents, including the
provisions of Section 8.5, shall be deemed to require Agent to
advance funds on behalf of any Lender or to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that
Agent or Borrower may have against any Lender as a result of any default by
such Lender hereunder.


 


8.5           Disbursements
of Advances; Payment.


 


(a)           Advances;
Payments.


 


(i)            Lenders
shall refund or participate in the Swing Line Loan in accordance with clauses
(iii) and (iv) of Section 1.1(b).  If the Swing Line Lender declines to make a
Swing Line Loan or if Swing Line Availability is zero, Agent shall notify
Lenders, promptly after receipt of a Notice of Revolving Credit Advance and in
any event prior to 1:00 p.m. (New York time) on the date such Notice of a
Revolving Credit Advance is received, by fax, telephone or other similar form
of transmission.  Each Lender shall make
the amount of such Lender’s Pro Rata Share of such Revolving Credit Advance
available to Agent in same day funds by wire transfer to Agent’s account as set
forth in Annex E not later than 3:00 p.m. (New York time) on the
requested Funding Date in the case of an Index Rate Loans and not later than
11:00 a.m. (New York time) on the requested Funding Date in the case of a
LIBOR Loan.  After receipt of such wire
transfers (or, in the Agent’s sole discretion, before receipt of such wire
transfers), subject to the terms hereof, Agent shall make the requested
Revolving Credit Advance to Borrower as designated by Borrower in the Notice of
Revolving Credit Advance.  All payments
by each Lender shall be made without setoff, counterclaim or deduction of any
kind.


 


(ii)           At
least once each calendar week or more frequently at Agent’s election (each, a “Settlement
Date”), Agent shall advise each Lender by telephone or fax of the amount of
such Lender’s Pro Rata Share of principal, interest and Fees paid for the
benefit of Lenders with respect to each applicable Loan.  Provided that each Lender has funded all
payments and Advances required to be made by it and purchased all
participations required to be purchased by it under this Agreement and the
other Loan Documents as of such Settlement Date,


 


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Agent shall pay to each Lender
such Lender’s Pro Rata Share of principal, interest and Fees paid by Borrower
since the previous Settlement Date for the benefit of such Lender on the Loans
held by it. Such payments shall be made by wire transfer to such Lender’s
account (as specified by such Lender in Annex E or the applicable
Assignment Agreement) not later than 2:00 p.m. (New York time) on the next
Business Day following each Settlement Date. To the extent that any Lender (a “Non-Funding
Lender”) has failed to fund all such payments and Advances or failed to
fund the purchase of all such participations, Agent shall be entitled to set
off the funding shortfall against that Non-Funding Lender’s Pro Rata Share
of all payments received from Borrower.


 


(b)           Availability
of Lender’s Pro Rata Share.  Agent
may assume that each Lender will make its Pro Rata Share of each Revolving
Credit Advance available to Agent on each Funding Date.  If such Pro Rata Share is not, in fact, paid
to Agent by such Lender when due, Agent will be entitled to recover such amount
on demand from such Lender without setoff, counterclaim or deduction of any
kind.  If any Lender fails to pay the
amount of its Pro Rata Share forthwith upon Agent’s demand, Agent shall
promptly notify Borrower and Borrower shall immediately repay such amount to
Agent.  Nothing in this Section 8.5(b) or
elsewhere in this Agreement or the other Loan Documents shall be deemed to
require Agent to advance funds on behalf of any Lender or to relieve any Lender
from its obligation to fulfill its Revolving Loan Commitments hereunder or to
prejudice any rights that Borrower may have against any Lender as a result of
any default by such Lender hereunder.  To
the extent that Agent advances funds to Borrower on behalf of any Lender and is
not reimbursed therefor on the same Business Day as such Advance is made, Agent
shall be entitled to retain for its account all interest accrued on such
Advance until reimbursed by the applicable Lender.


 


(c)           Return
of Payments.


 


(i)            If
Agent pays an amount to a Lender under this Agreement in the belief or expectation
that a related payment has been or will be received by Agent from Borrower and
such related payment is not received by Agent, then Agent will be entitled to
recover such amount from such Lender on demand without setoff, counterclaim or
deduction of any kind.


 


(ii)           If
Agent determines at any time that any amount received by Agent under this
Agreement must be returned to Borrower or paid to any other Person pursuant to
any insolvency law or otherwise, then, notwithstanding any other term or
condition of this Agreement or any other Loan Document, Agent will not be
required to distribute any portion thereof to any Lender.  In addition, each Lender will repay to Agent
on demand any portion of such amount that Agent has distributed to such Lender,
together with interest at such rate, if any, as Agent is required to pay to
Borrower or such other Person, without setoff, counterclaim or deduction of any
kind.


 


(d)           Non-Funding
Lenders.  The failure of any Non-Funding
Lender to make any Revolving Credit Advance or any payment required by it
hereunder, or to purchase any participation in any Swing Line Loan to be made
or purchased by it on the date specified therefor shall not relieve any other
Lender (each such other Lender, an “Other Lender”) of its obligations to
make such Advance or purchase such participation on such date, but neither any
Other Lender nor Agent shall be responsible for the failure of any Non-Funding
Lender to make an Advance,


 


77





















 


purchase a participation or
make any other payment required hereunder. 
Notwithstanding anything set forth herein to the contrary, a Non-Funding
Lender shall not have any voting or consent rights under or with respect to any
Loan Document or constitute a “Lender” or a “Lender” (or be included in the
calculation of “Requisite Lenders”, or “Supermajority Lenders” hereunder) for
any voting or consent rights under or with respect to any Loan Document.


 


(e)           Dissemination
of Information.  Agent shall use
reasonable efforts to provide Lenders with any notice of Default or Event of
Default received by Agent from, or delivered by Agent to, any Credit Party,
with notice of any Event of Default of which Agent has actually become aware
and with notice of any action taken by Agent following any Event of Default; provided,
that Agent shall not be liable to any Lender for any failure to do so.


 


(f)            Actions
in Concert.  Anything in this
Agreement to the contrary notwithstanding, each Lender hereby agrees with each
other Lender that no Lender shall take any action to protect or enforce its
rights arising out of this Agreement or the Notes (including exercising any
rights of setoff) without first obtaining the prior written consent of Agent
and Requisite Lenders, it being the intent of Lenders that any such action to
protect or enforce rights under this Agreement and the Notes shall be taken in
concert and at the direction or with the consent of Agent and Requisite
Lenders.  Agent is authorized to issue
all notices to be issued by or on behalf of the Lenders with respect to any
Subordinated Indebtedness.


 


8.6           Related
Obligations Matters.  The benefit of
this Agreement and the other Loan Documents relating to the Collateral shall
extend to and be available in respect of any Obligation arising under any
Related Swap Contract or any Cash Management Obligation or that is otherwise
owed to Persons other than Agent, Lenders and L/C Issuer (collectively, “Related
Obligations”) solely on the condition and understanding, as among the Agent
and all Secured Parties, that (a) the Related Obligations shall be
entitled to the benefit of the Loan Documents and the Collateral to the extent
expressly set forth in this Agreement and the other Loan Documents and to such
extent Agent shall hold, and have the right and power to act with respect to,
the Guaranty and the Collateral on behalf of and as agent for the holders of
the Related Obligations, but Agent is otherwise acting solely as agent for
Lenders and L/C Issuer and shall have no fiduciary duty, duty of loyalty, duty
of care, duty of disclosure or other obligation whatsoever to any holder of
Related Obligations, (b) all matters, acts and omissions relating in any
manner to the Guaranty, the Collateral, or the omission, creation, perfection,
priority, abandonment or release of any Lien, shall be governed solely by the
provision of this Agreement and the other Loan Documents and no separate Lien,
right, power or remedy shall arise or exist in favor of any Secured Party under
any separate instrument or agreement or in respect of any Related Obligation, (c) each
Secured Party shall be bound by all actions taken or omitted, in accordance
with the provisions of this Agreement and the other Loan Documents, by any
Agent and the Requisite Lenders, each of whom shall be entitled to act at its
sole discretion and exclusively in its own interest given its own Commitments
and its own interest in the Loans, Letter of Credit Obligations and other
Obligations to it arising under this Agreement or the other Loan Documents,
without any duty or liability to any other Secured Party or as to any Related
Obligation and without regard to whether any Related Obligation remains
outstanding or is deprived of the benefit of the Collateral or becomes
unsecured or is otherwise affected or put in jeopardy thereby, (d) no
holder of Related Obligations and no other Secured Party (except Agent,


 


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Lenders and L/C Issuer, to the
extent set forth in this Agreement) shall have any right to be notified of, or
to direct, require or be heard with respect to, any action taken or omitted in
respect of the Collateral or under this Agreement or the Loan Documents and (e) no
holder of any Related Obligation shall exercise any right of setoff, banker’s
lien or similar right except to the extent provided in Section 8.3
and then only to the extent such right is exercised in compliance with Section 8.3.


 


8.7           Other Agents.  None of the Arranger, the Lenders or other
Persons identified on the facing page or signature pages of this
Agreement as a “co-documentation agent,” “syndication agent,” or “arranger”
shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than, in the case of such Persons in their
respective capacities as Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of the
Arranger, Agent, Lender or other Persons so identified shall have or be deemed
to have any fiduciary relationship with any Lender.  Each Lender acknowledges that it has not
relied, and will not rely, on any of the Arranger, Agent, the Lenders or other
Persons so identified in deciding to enter into this Agreement or in taking or
not taking action hereunder.


 


SECTION 9.

MISCELLANEOUS


 


9.1           Indemnities.  Borrower agrees to indemnify, pay, and hold
Agent, each Lender, each L/C Issuer and their respective officers, directors,
employees, agents, and attorneys (the “Indemnitees”) harmless from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs and expenses (including all reasonable
fees and expenses of counsel to such Indemnitees) of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the
Indemnitee as a result of such Indemnitees being a party to this Agreement or
the other Loan Documents or the transactions consummated pursuant to this
Agreement or contemplated hereby, the Intercreditor Agreement or otherwise
relating to any of the Related Transactions and any other “Related Transactions”
as defined in the Existing Credit Agreement; provided, that Borrower
shall have no obligation to an Indemnitee hereunder with respect to liabilities
to the extent resulting from the gross negligence or willful misconduct of that
Indemnitee as determined by a court of competent jurisdiction.  If and to the extent that the foregoing
undertaking may be unenforceable for any reason, Borrower agrees to make the
maximum contribution to the payment and satisfaction thereof which is permissible
under applicable law.


 


9.2           Amendments
and Waivers.


 


(a)           Except
for actions expressly permitted to be taken by Agent, no amendment,
modification, termination or waiver of any provision of this Agreement or any
other Loan Document, or any consent to any departure by any Credit Party
therefrom, shall in any event be effective unless the same shall be in writing
and:


 


(i)            in
the case of an amendment to cure any ambiguity, omission, defect or
inconsistency, signed by Agent and Borrower;


 


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(ii)           in
the case of any amendment necessary to implement the terms of a Facility
Increase in accordance with the terms hereof, by Borrower, Agent and the
Incremental Lenders providing such Facility Increase;


 


(iii)          in
the case of any amendment to the Intercreditor Agreement, signed by Agent and
Borrower in accordance with the terms thereof and, to the extent any such
amendment would result in the terms of such Intercreditor Agreement, taken as a
whole, being less favorable to the Lenders, with the consent of the Requisite
Lenders;


 


(iv)          in
the case of any other amendment, modification, termination or waiver, signed by
Borrower, Agent and by Requisite Lenders, and to the extent required below,
Supermajority Lenders or all affected Lenders; and


 


(v)           except
as set forth in clauses (b) and (d) below, all such
amendments, modifications, terminations or waivers requiring the consent of any
Lenders shall require the written consent of Requisite Lenders.


 


(b)           No
amendment, modification, termination or waiver of or consent with respect to
any provision of this Agreement that (i) increases the percentage of the
advance rates set forth in the definitions of Eligible Accounts Formula,
Eligible Parts Inventory Formula or Eligible Rental Fleet and Equipment
Formula, (ii) makes less restrictive the nondiscretionary criteria for
exclusion from Eligible Accounts, Eligible Parts Inventory or Eligible Rental
Fleet and Equipment set forth in Sections 1.7, 1.8 or 1.9,
(iii) reduces the amount of the Minimum Availability Block, shall be
effective unless the same shall be in writing and signed by Agent,
Supermajority Lenders and Borrower or (iv) amend Section 4.1(e)(iii) to
require appraisals of the Orderly Liquidation Value of the Rental Fleet and
Equipment less frequently than once in any Fiscal Quarter.


 


(c)           No
amendment, modification, termination or waiver of or consent with respect to
any provision of this Agreement that waives compliance with the conditions
precedent set forth in Section 7.2 to the making of any Loan or the
incurrence of any Letter of Credit Obligations shall be effective unless the
same shall be in writing and signed by Agent, Requisite Lenders and
Borrower.  Notwithstanding anything
contained in this Agreement to the contrary, no waiver or consent with respect
to any Default or any Event of Default shall be effective for purposes of the
conditions precedent to the making of Loans or the incurrence of Letter of
Credit Obligations set forth in Section 7.2 unless the same shall
be in writing and signed by Agent, Requisite Lenders and Borrower.


 


(d)           No
amendment, modification, termination or waiver of or consent with respect to
any provision of this Agreement shall, unless in writing and signed by Agent
and each Lender directly affected thereby: 
(i) increase the principal amount of any Lender’s Commitment (which
action shall be deemed to directly affect only those Lenders providing such
increased Commitments); (ii) reduce the principal of, rate of interest on
or Fees payable with respect to any Loan or Letter of Credit Obligations of any
affected Lender; (iii) extend any scheduled payment date or final maturity
date of the principal amount of any Loan of any affected Lender; (iv) waive,
forgive, defer, extend or postpone any payment of interest or Fees as to any
affected


 


80





















 


Lender (which action shall be
deemed only to affect those Lenders to whom such payments are made); (v) except
in connection with an Asset Disposition expressly permitted pursuant to this
Agreement, release any Guaranty or, except as otherwise permitted in Section 3.7,
release all or substantially all of the Collateral (which action shall be
deemed to directly affect all Lenders); and (vi) change the definition of
Requisite Lenders or Supermajority Lenders to decrease the percentage of the
Revolving Loan Commitments or of the aggregate unpaid principal amount of the
Loans specified therein.


 


(e)           No
amendment, modification, termination or waiver affecting the rights or duties
of Agent, the Swing Line Lender or L/C Issuers under this Agreement or any
other Loan Document shall be effective unless in writing and signed by Agent,
the Swing Line Lender or L/C Issuers, as the case may be, in addition to
Lenders required hereinabove to take such action.  Each amendment, modification, termination or
waiver shall be effective only in the specific instance and for the specific
purpose for which it was given.


 


(f)            No
amendment, modification, termination or waiver shall be required for Agent to
take additional Collateral pursuant to any Loan Document.


 


(g)           No
notice to or demand on any Credit Party in any case shall entitle such Credit
Party or any other Credit Party to any other or further notice or demand in
similar or other circumstances.  Any
amendment, modification, termination, waiver or consent effected in accordance
with this Section 9.2 shall be binding upon each holder of the
Notes at the time outstanding and each future holder of the Notes.


 


9.3           Notices.  Any notice or other communication required
shall be in writing addressed to the respective party as set forth below and
may be personally served, telecopied, sent by overnight courier service or U.S.
Mail and shall be deemed to have been given: 
(a) if delivered in person, when delivered; (b) if delivered
by fax, on the date of transmission if transmitted on a Business Day before
4:00 p.m. (New York time); (c) if delivered by overnight courier, one
(1) Business Day after delivery to the courier properly addressed; or (d) if
delivered by U.S. mail, four (4) Business Days after deposit with postage
prepaid and properly addressed.


 


81


















 


Notices shall be addressed as follows:


 


	
  If to Borrower:

  	
   

  	
  NEFF Rental, Inc.

  3750 N.W. 87th Avenue

  Suite 400

  Miami, Florida 33178

  ATTN: Chief Financial Officer

  Fax: (305) 513-4156



  
	
  With a copy to:

  	
   

  	
  Latham & Watkins

  885 Third Avenue, Suite 1000

  New York, New York 10022

  ATTN: Henrik de Jong, Esq.

  Fax: (212) 751-4864



  
	
   

  	
   

  	
   

  
	
  If to Holdings, Finance Corp. or any other
  Credit Party (other than Borrower):

  	
   

  	
  To such Credit Party

  c/o NEFF Rental, Inc.

  3750 N.W. 87th Avenue

  Suite 400

  Miami, Florida 33178

  ATTN: Chief Financial Officer

  Fax: (305) 513-4156



  
	
  With a copy to:

  	
   

  	
  Latham & Watkins

  885 Third Avenue, Suite 1000

  New York, New York 10022

  ATTN: Henrik de Jong, Esq.

  Fax: (212) 751-4864



  
	
   

  	
   

  	
   

  
	
  If to Agent or GE Capital:

  	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION

  401 Merritt Seven, 2nd Floor

  Norwalk, Connecticut 06851

  ATTN: NEFF Corp. Account Manager

  Fax: (203) 229-1415



  
	
  With a copy to:

  	
   

  	
  GENERAL ELECTRIC CAPITAL

  CORPORATION

  335 Madison Avenue, 11th Floor

  New York, New York 10017

  ATTN: Aparup Sen

  Fax: (212) 983-8767

  

  and

  



 


82





















 


	
   

  	
   

  	
  WEIL, GOTSHAL & MANGES LLP

  200 Crescent Court

  Dallas, Texas 75201

  ATTN: Angela L. Fontana, Esq.

  Fax: (214) 764-7777

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to a Lender:

  	
   

  	
  To the address set forth on the signature
  page hereto or in the applicable Assignment Agreement

  



 


9.4           Failure
or Indulgence Not Waiver; Remedies Cumulative.  No failure or delay on the part of Agent or
any Lender to exercise, nor any partial exercise of, any power, right or
privilege hereunder or under any other Loan Documents shall impair such power,
right, or privilege or be construed to be a waiver of any Default or Event of
Default.  All rights and remedies
existing hereunder or under any other Loan Document are cumulative to and not
exclusive of any rights or remedies otherwise available.


 


9.5           Marshaling;
Payments Set Aside.  Neither Agent
nor any Lender shall be under any obligation to marshal any assets in payment
of any or all of the Obligations.  To the
extent that Borrower makes payments or Agent enforces its Liens or Agent or any
Lender exercises its right of set-off, and such payments or the proceeds of
such enforcement or set-off is subsequently invalidated, declared to be
fraudulent or preferential, set aside, or required to be repaid by anyone, then
to the extent of such recovery, the Obligations or part thereof originally
intended to be satisfied, and all Liens, rights and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or set-off had not occurred.


 


9.6           Severability.  The invalidity, illegality, or
unenforceability in any jurisdiction of any provision under the Loan Documents
shall not affect or impair the remaining provisions in the Loan Documents.


 


9.7           Lenders’
Obligations Several; Independent Nature of Lenders’ Rights.  The obligation of each Lender hereunder is
several and not joint and no Lender shall be responsible for the obligation or
commitment of any other Lender hereunder. 
In the event that any Lender at any time should fail to make a Loan as
herein provided, the Lenders, or any of them, at their sole option, may
make the Loan that was to have been made by the Lender so failing to make such
Loan.  Nothing contained in any Loan
Document and no action taken by Agent or any Lender pursuant hereto or thereto
shall be deemed to constitute Lenders to be a partnership, an association, a
joint venture or any other kind of entity. 
The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt.


 


9.8           Headings.  Section and subsection headings are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purposes or be given substantive effect.


 


83





















 


9.9           Applicable Law.  THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS WHICH DOES NOT EXPRESSLY SET FORTH APPLICABLE LAW SHALL BE GOVERNED
BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.


 


9.10         Successors
and Assigns.  This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns except that neither Borrower nor any other
Credit Party may assign its rights or obligations hereunder without the written
consent of Agent and all Lenders.


 


9.11         No Fiduciary
Relationship; Limited Liability.  No
provision in the Loan Documents and no course of dealing between the parties
shall be deemed to create any fiduciary duty owing to Borrower or any other
Credit Party by Agent or any Lender. 
Borrower agrees that neither Agent nor any Lender shall have liability
to Borrower or any other Credit Party (whether sounding in tort, contract or
otherwise) for losses suffered by Borrower or any other Credit Party in
connection with, arising out of, or in any way related to the transactions
contemplated and the relationship established by the Loan Documents, or any
act, omission or event occurring in connection therewith, unless and to the
extent that it is determined that such losses resulted from the gross
negligence or willful misconduct of the party from which recovery is sought as
determined by a final non-appealable order by a court of competent jurisdiction.  Neither Agent nor any Lender shall have any
liability with respect to, and Borrower hereby waives, releases and agrees not
to sue for, any special, indirect or consequential damages suffered by Borrower
or any other Credit Party in connection with, arising out of, or in any way
related to the Loan Documents or the transactions contemplated thereby.


 


9.12         Construction.  Agent, each Lender, Borrower and each other
Credit Party acknowledge that each of them has had the benefit of legal counsel
of its own choice and has been afforded an opportunity to review the Loan
Documents with its legal counsel and that the Loan Documents shall be construed
as if jointly drafted by Agent, each Lender, Borrower and each other Credit
Party.


 


9.13         Confidentiality.  Agent and each Lender agree to use
commercially reasonable efforts (equivalent to the efforts Agent or such Lender
applies to maintaining the confidentiality of its own confidential information)
to maintain as confidential all confidential information provided to them by
the Credit Parties and designated as confidential for a period of two (2) years
following receipt thereof, except that Agent and any Lender may disclose such
information (a) to Persons employed or engaged by Agent, such Lender or
such Lender’s Affiliates; (b) to any bona fide assignee or participant or
potential assignee or participant that has agreed to comply with the covenant
contained in this Section 9.13 (and any such bona fide assignee or
participant or potential assignee or participant may disclose such information
to Persons employed or engaged by them as described in the foregoing clause
(a)); (c) as required or requested by any Governmental Authority or
reasonably believed by Agent or such Lender to be compelled by any court
decree, subpoena or legal or administrative order or process; (d) as, on
the advice of Agent’s or such Lender’s counsel, is required by law; (e) in
connection with the exercise of any right or remedy under the Loan Documents or
in connection with any Litigation


 


84





















 


to which Agent or such Lender
is a party; (f) to the Junior Collateral Agent, the Trustee, the trustee
under the Senior Subordinated Notes and any holder of Senior Secured Notes or
other Series of Parity Junior Lien Debt, subject to the confidentiality
provisions thereof or (g) that ceases to be confidential through no fault
of Agent or any Lender.


 


9.14         CONSENT TO
JURISDICTION.  BORROWER AND EACH
CREDIT PARTY HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN NEW YORK COUNTY, STATE OF NEW YORK AND IRREVOCABLY AGREE THAT,
SUBJECT TO AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN
SUCH COURTS.  BORROWER AND EACH CREDIT
PARTIES EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID
COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS.  BORROWER AND EACH CREDIT PARTY HEREBY WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREE THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE UPON BORROWER AND SUCH CREDIT PARTIES BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO BORROWER, AT THE
ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS
AFTER THE SAME HAS BEEN POSTED.  IN ANY
LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, ALL DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS OF BORROWER, CREDIT PARTY OR ANY OF THEIR AFFILIATES SHALL
BE DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF BORROWER OR SUCH CREDIT PARTIES
FOR PURPOSES OF ALL APPLICABLE LAW OR COURT RULES REGARDING THE PRODUCTION OF
WITNESSES BY NOTICE FOR TESTIMONY (WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE).  BORROWER AND EACH CREDIT PARTY AGREES THAT
AGENT’S OR ANY LENDER’S COUNSEL IN ANY SUCH DISPUTE RESOLUTION PROCEEDING MAY EXAMINE
ANY OF THESE INDIVIDUALS AS IF UNDER CROSS-EXAMINATION AND THAT ANY DISCOVERY
DEPOSITION OF ANY OF THEM MAY BE USED IN THAT PROCEEDING AS IF IT WERE AN
EVIDENCE DEPOSITION.  BORROWER AND CREDIT
PARTIES IN ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE EFFORTS TO PRODUCE IN
ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND IN THE MANNER REQUESTED
BY AGENT OR ANY LENDER, ALL PERSONS, DOCUMENTS (WHETHER IN TANGIBLE, ELECTRONIC
OR OTHER FORM) OR OTHER THINGS UNDER THEIR CONTROL AND RELATING TO THE DISPUTE.


 


9.15         WAIVER OF JURY TRIAL.  BORROWER, EACH CREDIT PARTY, AGENT AND EACH
LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.  BORROWER, EACH CREDIT PARTY,
AGENT AND EACH LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN
ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THAT EACH WILL
CONTINUE TO RELY ON


 


85





















 


THE WAIVER IN THEIR RELATED
FUTURE DEALINGS.  BORROWER, EACH CREDIT
PARTY, AGENT AND EACH LENDER WARRANT AND REPRESENT THAT EACH HAS HAD THE
OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.


 


9.16         Survival
of Warranties and Certain Agreements. 
All agreements, representations and warranties made herein shall survive
the execution and delivery of this Agreement, the making of the Loans,
issuances of Letters of Credit and the execution and delivery of the Notes.  Notwithstanding anything in this Agreement or
implied by law to the contrary, the agreements of Borrower set forth in Sections 1.3(e),
1.11, 1.12 and 9.1 shall survive the repayment of the Obligations
and the termination of this Agreement.


 


9.17         Entire Agreement.  This Agreement, the Notes and the other Loan
Documents embody the entire agreement among the parties hereto and supersede
all prior commitments, agreements, representations, and understandings, whether
oral or written, relating to the subject matter hereof, and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent
oral agreements or discussions of the parties hereto.  All Exhibits, Schedules and Annexes referred
to herein are incorporated in this Agreement by reference and constitute a part
of this Agreement.


 


9.18         Counterparts;
Effectiveness.  This Agreement and
any amendments, waivers, consents or supplements may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which counterparts together shall constitute but one in the same
instrument.  This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto.


 


9.19         Replacement
of Lenders.


 


(a)           Within
fifteen (15) days after receipt by Borrower of written notice and demand from
any Lender for payment pursuant to Section 1.11 or 1.12 or,
as provided in this Section 9.19(c), in the case of certain
refusals by any Lender to consent to certain proposed amendments,
modifications, terminations or waivers with respect to this Agreement that have
been approved by Requisite Lenders, Supermajority Lenders or all affected
Lenders, as applicable (any such Lender demanding such payment or refusing to
so consent being referred to herein as an “Affected Lender”), Borrower
may, at its option, notify Agent and such Affected Lender of its intention to
do one of the following:


 


(i)            Borrower
may obtain, at Borrower’s expense, a replacement Lender (“Replacement Lender”)
for such Affected Lender, which Replacement Lender shall be reasonably
satisfactory to Agent.  In the event
Borrower obtains a Replacement Lender that will purchase all outstanding
Obligations owed to such Affected Lender and assume its Revolving Loan
Commitments hereunder within ninety (90) days following notice of Borrower’s
intention to do so, the Affected Lender shall sell and assign all of its rights
and delegate all of its obligations under this Agreement to such Replacement
Lender in accordance with the provisions


 


86





















 


of Section 8.1, provided
that Borrower has reimbursed such Affected Lender for any administrative fee
payable pursuant to Section 8.1 and, in any case where such
replacement occurs as the result of a demand for payment pursuant to Section 1.11
or 1.12, paid all amounts required to be paid to such Affected Lender
pursuant to Section 1.11 or 1.12 through the date of such
sale and assignment; or


 


(ii)           Borrower
may, with Agent’s consent, prepay in full all outstanding Obligations owed to
such Affected Lender and terminate such Affected Lender’s Pro Rata Share of the
Revolving Loan Commitment in which case the Revolving Loan Commitment will be
reduced by the amount of such Pro Rata Share. 
Borrower shall, within ninety (90) days following notice of its
intention to do so, prepay in full all outstanding Obligations owed to such
Affected Lender (including, in any case where such prepayment occurs as the
result of a demand for payment for increased costs, such Affected Lender’s
increased costs for which it is entitled to reimbursement under this Agreement
through the date of such prepayment), and terminate such Affected Lender’s
obligations under the Revolving Loan Commitment.


 


(b)           In
the case of a Non-Funding Lender pursuant to Section 8.5(a), at
Borrower’s request, Agent or a Person acceptable to Agent shall have the right
with Agent’s consent and in Agent’s sole discretion (but shall have no
obligation) to purchase from any Non-Funding Lender, and each Non-Funding
Lender agrees that it shall, at Agent’s request, sell and assign to Agent or
such Person, all of the Loans and Commitments of that Non-Funding Lender for an
amount equal to the principal balance of all Loans held by such Non-Funding
Lender and all accrued interest and Fees with respect thereto through the date
of sale, such purchase and sale to be consummated pursuant to an executed
Assignment Agreement.


 


(c)           If,
in connection with any proposed amendment, modification, waiver or termination
pursuant to Section 9.2 (a “Proposed Change”):


 


(i)            requiring
the consent of all affected Lenders, the consent of Requisite Lenders is
obtained, but the consent of other Lenders whose consent is required is not
obtained (any such Lender whose consent is not obtained as described in this clause
(i) and in clause (ii) below being referred to as a “Non-Consenting
Lender”), or


 


(ii)           requiring
the consent of Supermajority Lenders, the consent of Requisite Lenders is
obtained, but the consent of Supermajority Lenders is not obtained,


 


then, so long as Agent is not a Non-Consenting Lender, at Borrower’s
written request (made within one hundred eighty (180) days after the consent of
the Requisite Lenders was obtained as described above), Agent, or a Person
reasonably acceptable to Agent, shall have the right with Agent’s consent and
in Agent’s sole discretion (but shall have no obligation) to purchase from such
Non-Consenting Lenders, and such Non-Consenting Lenders agree that they shall,
upon Agent’s request, sell and assign to Agent or such Person, all of the Loans
and Commitments of such Non-Consenting Lenders for an amount equal to the
principal balance of all Loans held by the Non-Consenting Lenders and all
accrued interest and Fees with respect thereto through the date of sale, such
purchase and sale to be consummated pursuant to an executed Assignment
Agreement.


 


87





















 


9.20         Release of Neff Corp.  Agent and the Lenders acknowledge and agree
that effective as of the Amendment and Restatement Date upon the consummation
of the Neff Reorganization (including the assumption by NEFF LLC of
substantially all of the assets and liabilities of Parent (including Parent’s
obligations under the Agent Fee Letter)), (a) Parent shall be released
from its obligations under the Loan Documents to which it is a party, including
its obligations under the Guaranty, the Security Agreement and the Pledge
Agreement, and (ii) the Lien created by each of the Security Agreement and
the Pledge Agreement on the assets and property of Parent shall be
released.  By executing this Agreement,
the Lenders authorize Agent to take any actions necessary or advisable to
effectuate the foregoing releases, including the filing of a UCC-3 termination
statement under the Code to evidence the release of the Lien on Parent’s assets
and properties granted to Agent in connection with the Existing Credit
Agreement and related “Collateral Documents” (as defined therein).  The foregoing releases are made by Agent
without recourse, representation or warranty.


 


[Remainder or Page Intentionally
Left Blank]


 


88





















 


Witness the due execution hereof by the
respective duly authorized officers of the undersigned as of the date first
written above.


 


	
   

  	
  NEFF RENTAL, INC.,
  as Borrower

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CREDIT PARTIES:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NEFF RENTAL LLC, as
  Holdings and 

  	
   

  
	
   

  	
  a Credit Party

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NEFF FINANCE CORP.,
  as a Credit Party

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


 


[SIGNATURE PAGE TO NEFF RENTAL, INC. AMENDED AND RESTATED CREDIT
AGREEMENT]


 





















 


	
   

  	
  GENERAL ELECTRIC CAPITAL

  CORPORATION,
as Agent, Swing Line Lender and a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Its Duly Authorized Signatory

  	
   

  



 





















 


	
   

  	
  BANK OF AMERICA, N.A.,

  as Syndication Agent, L/C Issuer and a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Credit
  Contact:

  	
   

  
	
   

  	
  Address:

  	
  300 Galleria
  Parkway, Suite 800

  	
   

  
	
   

  	
   

  	
  Atlanta, GA
  30339

  Attn:  Dennis S. Losin

  Fax:  770-857-2947

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Operations Contact:

  	
   

  
	
   

  	
  Address:

  	
  6100
  Fairview Road, Suite 200

  	
   

  
	
   

  	
   

  	
  Charlotte,
  NC 28210

  	
   

  
	
   

  	
   

  	
  Attn: Tonya
  Patterson

  	
   

  
	
   

  	
   

  	
  Fax: 704-553-6771

  	
   

  
							



 





















 


	
   

  	
  GMAC COMMERCIAL
  FINANCE LLC,

  as a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Credit
  Contact:

  	
   

  
	
   

  	
  Address:

  	
  444 S.
  Flower St., #1300

  	
   

  
	
   

  	
   

  	
  Los Angeles,
  CA 90071

  Attn: David
  Grabosky

  Fax:  213-284-3612

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Operations Contact:

  	
   

  
	
   

  	
  Address

  	
  3000 Town
  Center, #280

  	
   

  
	
   

  	
   

  	
  Southfield,
  MI 48075

  	
   

  
	
   

  	
   

  	
  Attn:
  Claudette Robotham

  	
   

  
	
   

  	
   

  	
  Fax:
  248-356-8978

  	
   

  
							



 





















 


	
   

  	
  WACHOVIA BANK, NATIONAL

  ASSOCIATION,

  as Co-Documentation Agent and as a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Credit
  Contact:

  	
   

  
	
   

  	
  Address:

  	
  301 South
  College Street

  	
   

  
	
   

  	
   

  	
  NC 0479,
  18th Floor

  Charlotte,
  NC 28288-0479

  Attn:  Andrew Gale

  Fax:  704-374-2703

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Operations Contact:

  	
   

  
	
   

  	
  Address:

  	
  201 South
  College Street

  	
   

  
	
   

  	
   

  	
  NC 0820, 9th
  Floor

  	
   

  
	
   

  	
   

  	
  Charlotte,
  NC 28288-0820

  	
   

  
	
   

  	
   

  	
  Attn:  Cheryl Johnson

  	
   

  
	
   

  	
   

  	
  Fax:  704-715-0103

  	
   

  
							



 





















 


	
   

  	
  THE CIT GROUP/BUSINESS CREDIT, INC.,

  as Co-Documentation Agent and as a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Credit
  Contact:

  	
   

  
	
   

  	
  Address:

  	
  1211 Avenue
  of the Americas

  	
   

  
	
   

  	
   

  	
  New York, NY
  10036

  Attn: Evelyn
  Kusold

  Fax:  212-536-1295

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Operations Contact:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  1211 Avenue
  of the Americas

  	
   

  
	
   

  	
   

  	
  New York, NY
  10036

  Attn: Marvin Daniel

  Fax:  212-536-1295

  	
   

  
							



 





















 


	
   

  	
  PNC BANK, N.A.,

  as a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Credit
  Contact:

  	
   

  
	
   

  	
  Address:

  	
  201 South
  Tryon Street,

  	
   

  
	
   

  	
   

  	
  Suite 900

  Charlotte, NC 28202

  Attn: Scott Goldstein

  Fax:  704-342-8450

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Operations Contact:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  Two Tower
  Center Blvd,

  	
   

  
	
   

  	
   

  	
  8th Floor

  East Brunswick, NJ 08816

  Attn: Gurdatt Jagnanan

  Fax: 732-220-3268

  	
   

  
							



 





















 


	
   

  	
  UNION BANK OF CALIFORNIA, N.A.,

  as a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Credit
  Contact:

  	
   

  
	
   

  	
  Address:

  	
  200 Pringle
  Avenue, Suite 260

  	
   

  
	
   

  	
   

  	
  Walnut
  Creek, CA 94596

  Attn:  Brent Housteau

  Fax:  925-943-7442

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Operations Contact:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address

  	
  1980 Saturn
  Street

  	
   

  
	
   

  	
   

  	
  Monterey
  Park, CA 91755

  Attn: Angela Tiao

  Fax: 323-720-2252

  	
   

  
							



 





















 


ANNEX A

to

AMENDED AND RESTATED CREDIT AGREEMENT


 


DEFINITIONS


 


Capitalized terms used in the Loan Documents
shall have (unless otherwise provided elsewhere in the Loan Documents) the
following respective meanings and all references to Sections, Exhibits,
Schedules or Annexes in the following definitions shall refer to Sections,
Exhibits, Schedules or Annexes of or to this Agreement:


 


“Account Debtor” means any Person who
may become obligated to any Credit Party under, with respect to, or on account
of, an Account, Chattel Paper or General Intangibles (including a payment
intangible).


 


“Accounting Changes” means:  (a) changes in accounting principles
required by GAAP and implemented by Holdings or any of its Subsidiaries; (b) changes
in accounting principles recommended or approved by Borrower’s Accountants and
implemented by Borrower; and (c) changes in carrying value of Borrower’s
or any of its Subsidiaries’ assets, liabilities or equity accounts resulting
from (i) the application of purchase accounting principles (A.P.B. 16 and/or
17 and EITF 88-16 and FASB 109) to the Related Transactions or (ii) as
the result of any other adjustments that, in each case, were applicable to, but
not included in, the Pro Forma.


 


“Accounts” means all “accounts,” as
such term is defined in the Code, now owned or hereafter acquired by any Credit
Party, including (a) all accounts receivable, other receivables, book
debts, Rental Payments and other forms of obligations (other than, except in
the case of Rental Payments, forms of obligations evidenced by Chattel Paper or
Instruments), (including any such obligations that may be characterized as an
account or contract right under the Code), (b) all of each Credit Party’s
rights in, to and under all purchase orders or receipts for goods or services, (c) all
of each Credit Party’s rights to any goods represented by any of the foregoing
(including unpaid sellers’ rights of rescission, replevin, reclamation and stoppage in
transit and rights to returned, reclaimed or repossessed goods), (d) all
rights to payment due to any Credit Party for property sold, leased, licensed,
assigned or otherwise disposed of, for a policy of insurance issued or to be
issued, for a secondary obligation incurred or to be incurred, for energy
provided or to be provided, for the use or hire of a vessel under a charter or
other contract, arising out of the use of a credit card or charge card, or for
services rendered or to be rendered by such Credit Party or in connection with
any other transaction (whether or not yet earned by performance on the part of
such Credit Party), (e) all healthcare insurance receivables, and (f) all
collateral security of any kind, now or hereafter in existence, given by any
Account Debtor or other Person with respect to any of the foregoing.


 


“Acquisition Pro Forma” has the
meaning specified in the definition of Permitted Acquisition.


 


“Acquisition Projections” has the
meaning specified in the definition of Permitted Acquisition.


 


A-1





















 


“Advances” means any Revolving Credit
Advance or Swing Line Advance, as the context may require.


 


“Affected Lender” has the meaning
specified in Section 9.19(a).


 


“Affiliate” means, with respect to any
Person, each Person that controls, is controlled by or is under common control
with such person; provided, that for purposes of Section 3.8,
the term “Affiliate” shall include (a) each Person that, directly
or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, 5% or more of the Stock having ordinary voting
power in the election of directors of such Person, (b) each of such Person’s
officers, directors, joint venturers and partners and (c) in the case of
any Credit Party, the immediate family members, spouses and lineal descendants
of individuals who are Affiliates of such Credit Party; provided, however,
that the term “Affiliate” shall specifically exclude Agent and each
Lender.  For the purposes of this
definition, “control” of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise.


 


“Affiliate Transaction” has the
meaning specified in Section 3.8.


 


“Agent” means GE Capital in its
capacity as Agent for Lenders, L/C Issuers and any other Secured Parties or its
successor appointed pursuant to Section 8.2.


 


“Agent Fee Letter” means (a) that
certain fee letter agreement, dated as of April 6, 2005, among Iron Merger
Sub, Inc. and GE Capital, relating to certain fees payable in connection
with this Agreement and (b) any additional fee letter entered into in
connection with the Facility Increase and executed by, among others, Borrower
and Agent.


 


“Agent’s Office” means the Agent’s
offices located at 401 Merritt Seven, Second Floor, Norwalk, CT 06851 or such
other office designed in writing by Agent to Borrower and the Lenders.


 


“Agreement” means this Amended and
Restated Credit Agreement (including all schedules, subschedules, annexes and exhibits
hereto), as the same may be amended, supplemented, restated or otherwise
modified from time to time.


 


“Amendment and Restatement Date” means
July 8, 2005.


 


“Applicable L/C Margin” means the per
annum fee, from time to time in effect, payable with respect to outstanding
Letter of Credit Obligations as determined by reference to the definition of “Applicable
Margin”.


 


“Applicable Margins” means
collectively the Applicable L/C Margin, the Applicable Unused Line Fee Margin,
the Applicable Revolver Index Margin and the Applicable Revolver LIBOR
Margin.  As of the Amendment and
Restatement Date, the Applicable Margins are as follows:


 


A-2





















 


	
  Applicable
  Revolver Index Margin

  	
   

  	
  1.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable
  Revolver LIBOR Margin

  	
   

  	
  2.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable
  L/C Margin

  	
   

  	
  2.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable
  Unused Line Fee Margin

  	
   

  	
  0.50

  	
  %

  



 


The Applicable Margins shall be adjusted (up or down) prospectively on
a quarterly basis as determined by Holdings’ and its Subsidiaries’ consolidated
financial performance, commencing with the first Business Day of the first
calendar month that occurs more than one (1) day after delivery of
Holdings’ quarterly Financial Statements to Lenders for the Fiscal Quarter
ending September 30, 2005.  Adjustments
in Applicable Margins will be determined by reference to the following grids:


 


	
  If the Leverage Ratio is:

  	
   

  	
  Level of Applicable Margins:

  
	
  < 3.00:1.00

  	
   

  	
  Level I

  
	
  <3.50:1.00, but > 3.00:1.00

  	
   

  	
  Level II

  
	
  <4.50:1.00, but > 3.50:1.00

  	
   

  	
  Level III

  
	
  <5.25, but > 4.50:1.00

  	
   

  	
  Level IV

  
	
  >5.25:1.00

  	
   

  	
  Level V

  



 


	
   

  	
   

  	
  Applicable Margins

  	
   

  
	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  	
  Level IV

  	
   

  	
  Level V

  	
   

  
	
  Applicable
  Revolver Index Margin

  	
   

  	
  0.50

  	
  %

  	
  0.75

  	
  %

  	
  1.00

  	
  %

  	
  1.25

  	
  %

  	
  1.50

  	
  %

  
	
  Applicable
  Revolver LIBOR Margin

  	
   

  	
  1.75

  	
  %

  	
  2.00

  	
  %

  	
  2.25

  	
  %

  	
  2.50

  	
  %

  	
  2.75

  	
  %

  
	
  Applicable
  L/C Margin

  	
   

  	
  1.75

  	
  %

  	
  2.00

  	
  %

  	
  2.25

  	
  %

  	
  2.50

  	
  %

  	
  2.75

  	
  %

  
	
  Applicable
  Unused Line Fee Margin

  	
   

  	
  0.375

  	
  %

  	
  0.375

  	
  %

  	
  0.375

  	
  %

  	
  0.50

  	
  %

  	
  0.50

  	
  %

  



 


Concurrently with the delivery of the applicable Financial Statements,
Holdings shall deliver to Agent and Lenders a certificate, signed by its chief
financial officer, setting forth in reasonable detail the basis for the
continuance of, or any change in, the Applicable Margins.  Failure to timely deliver such Financial
Statements (after giving effect to the grace period set forth therefor in Section 6.1(c))
shall, in addition to any other remedy provided for in this Agreement, result
in an increase in the Applicable Margins to the highest level set forth in the
foregoing grid, until the first Business Day following the delivery of those
Financial Statements demonstrating that such an increase is not required.  If any Default or an Event of Default has
occurred and is continuing at the time any reduction in the Applicable Margins
is to be implemented, that reduction shall be deferred until the first Business
Day following the date on which all Defaults or Events of Default are waived or
cured.


 


“Applicable Revolver Index Margin”
means the per annum interest rate margin from time to time in effect and
payable in addition to the Index Rate applicable to the Revolving Loan, as
determined by reference to the definition of “Applicable Margin”.


 


A-3





















 


“Applicable Revolver LIBOR Margin”
means the per annum interest rate from time to time in effect and payable in
addition to the LIBOR Rate applicable to the Revolving Loan, as determined by
reference to the definition of “Applicable Margin”.


 


“Applicable Unused Line Fee Margin”
means the per annum fee, from time to time in effect, payable in respect of
Borrower’s non-use of committed funds pursuant to Section 1.3(b),
which fee is determined by reference to the definition of “Applicable Margin”.


 


“Approved Appraiser” means Rouse Asset
Services, Inc., Hunyady Appraisal Services, Ritchie Brothers Auctioneers
or such other appraisal company of similar qualifications and standing
acceptable to Agent in its sole discretion.


 


“Approved Fund” has the meaning
specified in the definition of Qualified Assignee.


 


“Asset Disposition” means (a) the
disposition, whether by sale, lease, transfer, rental, conveyance, license or
otherwise, of (i)  any of the Stock or other equity or ownership
interest of any direct or indirect Subsidiary of Holdings or (ii) any or
all of the assets of Holdings or any of its Subsidiaries, (b) any loss or
destruction of, or damage to, any or all of the assets of Holdings or any of
its Subsidiaries that results in the receipt by such Person of insurance
proceeds and/or (c) any loss of property of Holdings or any of its
Subsidiaries by condemnation, taking of such property or otherwise, that
results in the receipt by such Person of a compensation payment in respect
thereof.


 


“Assignment Agreement” has the meaning
specified in Section 8.1(a).


 


“Bank of America” has the meaning
specified in the introductory paragraph to this Agreement.


 


“Bank Products” means (a) Related
Swap Contracts, (b) products and services under Cash Management Documents
and (c) to the extent not otherwise included in the foregoing, any or all
types of banking products, services or facilities (other than Letters of
Credit) extended to Borrower or any Eligible Credit Party by Agent or any
Person that was a Lender or an Affiliate of Agent or any Lender at the time it
entered into such banking products, services or facilities (whether or not in
reliance of GE Capital’s agreement to indemnify such Person), including credit
card services, merchant card services and such other banking products or
services as may be requested by Borrower or any Eligible Credit Party (on
behalf of itself or its Subsidiaries).


 


“Banking Relationship Debt” means
Indebtedness or other obligations of Borrower or any Eligible Credit Party
owing (a) to Agent, any Lender or any of their respective Affiliates or (b) to
Agent in connection with its having provided any guaranty or indemnity on
behalf of any such Person with respect to any Bank Products.


 


“Bankruptcy Code” means the provisions
of Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. or other
applicable bankruptcy, insolvency or similar laws.


 


A-4





















 


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


 


“Borrower” has the meaning specified
in the introductory paragraph to this Agreement.


 


“Borrower’s Accountants” means
Kaufmann Rossin & Co., Professional Association, or such other
independent certified public accountants of nationally recognized standing
reasonably acceptable to the Agent.


 


“Borrowing Availability” means as of
any date of determination (a) the Borrowing Base less (b) the
Revolving Loans then outstanding (including, without duplication, the then
outstanding balance of Swing Line Loans and Letter of Credit Obligations (other
than Letter of Credit Obligations that are secured by cash collateral or a
standby letter of credit (in form and substance and from an issuer satisfactory
to Agent) in an amount equal to 105% of such Letter of Credit Obligations)).


 


“Borrowing Base” means, with respect
to the Credit Parties, as of any date of determination, from time to time, an
amount equal to, without duplication, the lesser of (a) the Maximum Amount
and (b)(i) the sum of (A) the Eligible Accounts Formula, (B) Eligible
Parts Inventory Formula and (C) the Eligible Rental Fleet and Equipment
Formula less (ii) any Reserves less (iii) the Minimum
Availability Block; provided, that with respect to any Subsidiary of
Borrower which becomes a Credit Party at any time after the Amendment and
Restatement Date, the Accounts, Parts Inventory and Rental Fleet and Equipment
of such new Credit Party shall not be included in the Borrowing Base until (x)
Agent shall have conducted such appraisals, audits, evaluations and/or
inspections of such Collateral as Agent shall deem reasonably necessary or
advisable with respect to such Collateral and (y) Borrower and such Subsidiary
shall have complied with the requirements of Section 2.8.


 


“Borrowing Base Certificate” has the
meaning specified in Section 4.1(d).


 


“Bridge Loan Agent” means Credit
Suisse, in its capacity as administrative and collateral agent under the Bridge
Loan Agreement and the other Bridge Loan Documents.


 


“Bridge Loan Agreement” means the
Bridge Loan Agreement dated as of the Original Closing Date among Holdings, as
borrower, NEFF, as guarantor, the financial institutions party thereto as
lenders and the Bridge Loan Agent.


 


“Bridge Loan Documents” means the
Bridge Loan Agreement and all other documents executed and delivered with
respect to the Bridge Loans or the Bridge Loan Agreement prior to the Amendment
and Restatement Date. 


 


“Bridge Loans” means the senior
secured term loans of Parent in an aggregate principal amount of up to
$245,000,000 made on the Original Closing Date pursuant to the terms of the
Bridge Loan Agreement, plus all accrued and unpaid interest, capitalized
interest added to principal, fees and expenses in connection therewith.


 


A-5





















 


“Business Day” means any day that is
not a Saturday, a Sunday or a day on which banks are required or permitted to
be closed in the State of New York or the State of Florida and in reference to
LIBOR Loans shall mean any such day that is also a LIBOR Business Day.


 


“Capital Expenditures” means, with
respect to any Person for any period, the aggregate of amounts that would be
reflected as additions to property, plant or equipment on a consolidated
balance sheet of such Person and its Subsidiaries, excluding interest
capitalized during construction.


 


“Capital Lease” means, with respect to
any Person, any lease of any property (whether real, personal or mixed) by such
Person as lessee that, in accordance with GAAP, would be required to be
classified and accounted for as a Capital Lease on a balance sheet of such
Person.


 


“Capital Lease Obligation” means, with
respect to any Capital Lease of any Person, the amount of the obligation of the
lessee thereunder that, in accordance with GAAP, would appear on a balance
sheet of such lessee in respect of such Capital Lease.


 


“Cash Equivalents” means:


 


(a) marketable securities (i) issued
or directly and unconditionally guaranteed as to interest and principal by the
United States government or (ii) issued by any agency of the United States
government the obligations of which are backed by the full faith and credit of
the United States, in each case maturing within one (1) year after
acquisition thereof;


 


(b) 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, in each case maturing
within one year after acquisition thereof and having, at the time of
acquisition, a rating of at least A-1 from S&P or at least P-1 from Moody’s;


 


(c) commercial paper maturing no more
than one year from the date of acquisition and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody’s;


 


(d) certificates of deposit or bankers’
acceptances issued or accepted by any Lender or by any commercial bank
organized under the laws of the United States of America or any state thereof
or the District of Columbia that is at least (i) ”adequately capitalized”
(as defined in the regulations of its primary Federal banking regulator) and (ii) has
Tier 1 capital (as defined in such regulations) of not less than $250,000,000,
in each case maturing within one year after issuance or acceptance thereof; and


 


(e) shares of any money market mutual or
similar funds that (i) has substantially all of its assets invested
continuously in the types of investments referred to in clauses (a) through
(d) above, (ii) has net assets of not less than $500,000,000 and (iii) has
the highest rating obtainable from either S&P or Moody’s.


 


A-6





















 


“Cash Management Document” means any
certificate, agreement or other document executed by Borrower or any Eligible
Credit Party in respect of the Cash Management Obligations of any such Person.


 


“Cash Management Obligation” means, as
applied to any Person, any direct or indirect liability, contingent or
otherwise, of such Person in respect of cash management services (including
treasury, depository, overdraft, controlled disbursement, credit or debit card,
purchase card, electronic funds transfer, automatic clearing house transfer and
other cash management arrangements) provided after the date hereof (regardless
of whether these or similar services were provided prior to the date hereof by
Agent, any Lender or any Affiliate of any of them) by Agent or any Person that
was a Lender or an Affiliate of Agent or any Lender at the time the applicable
Cash Management Documents were entered into, including obligations for the
payment of fees, interest, charges, expenses, attorneys’ fees and disbursements
in connection therewith.


 


“CERCLA” means the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. § 9601 et seq.).


 


“Certificate of Exemption” has the
meaning specified in Section 1.12(c).


 


“Change of Control” means any event,
transaction or occurrence as a result of which:


 


(a)           at
any time prior to the consummation of a Qualifying IPO, the Permitted Holders
cease to “beneficially own” (within the meaning of Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934) and control all of the economic and
voting rights associated with ownership of more than fifty percent (50%) of the
outstanding Stock of Holdings having ordinary voting power on a fully diluted
basis; or


 


(b)           at
any time as of or after the consummation of a Qualifying IPO, (A) any “person”
or “group” (within the meaning of Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person and its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such
plan, and excluding the Permitted Holders) shall become the “beneficial owner”
(within the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934), directly or indirectly, of more than twenty percent (20%) of the
outstanding Stock having ordinary voting power of the Qualifying IPO Issuer or (B) the
Permitted Holders shall own less than thirty percent (30%) of the outstanding
Stock having ordinary voting power of the Qualifying IPO Issuer at such time;
or


 


(c)           during
any period of twelve (12) consecutive months, the board of directors of
Holdings (or, after the consummation of a Qualifying IPO, the Qualifying IPO
Issuer) shall not, for any reason other than death or disability, consist of a
majority of the Continuing Directors; or


 


(d)           Holdings
ceases to own and control all of the economic and voting rights associated with
all of the outstanding Stock of NEFF; or


 


A-7





















 


(e)           the
occurrence of a “Change of Control” under and as defined in the Senior Secured
Notes Indenture, any Subordinated Indenture, any Second Lien Financing
Documentation or any documentation governing any Permitted Refinancing
Indebtedness in respect of any of the foregoing.


 


“Charges” means all federal, state,
county, city, municipal, local, foreign or other governmental taxes (including
premiums and other amounts owed to the PBGC at the time due and payable),
levies, assessments, charges, Liens, claims or encumbrances upon or relating to
(a) the Collateral, (b) the Obligations, (c) the employees,
payroll, income or gross receipts of any Credit Party, (d) any Credit
Party’s ownership or use of any properties or other assets, or (e) any
other aspect of any Credit Party’s business.


 


“Chattel Paper” means any “chattel
paper,” as such term is defined in the Code, including electronic chattel
paper, now owned or hereafter acquired by any Credit Party, wherever located.


 


“Closing Checklist” means the
schedule, including all appendices, exhibits or schedules thereto, listing certain
documents and information to be delivered in connection with this Agreement,
the other Loan Documents and the transactions contemplated thereunder,
substantially in the form attached hereto as Annex C.


 


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


 


“Collateral” means the property
covered by the Security Agreement, the Mortgages and the other Collateral
Documents and any other property, real or personal, tangible or intangible, now
existing or hereafter acquired, that may at any time be or become subject to a
security interest or Lien in favor of Agent, on behalf of itself and the Secured
Parties, to secure the Obligations or any portion thereof.


 


“Collateral Documents” means the
Security Agreement, the Pledge Agreement, the Guaranties, the Intercreditor
Agreement, the Mortgages, the Patent Security Agreements, the Trademark
Security Agreements, the Copyright Security Agreements, the Control Agreements
and all similar agreements entered into guaranteeing payment of, or granting a
Lien upon property as security for payment of, the Obligations or any portion
thereof.


 


“Commitment Termination Date” means
the earliest of (a) June 3, 2010, which date is the fifth (5th)
anniversary of the Original Closing Date, (b) the date of termination of


 


A-8





















 


Lenders’ obligations to make
Advances and to incur Letter of Credit Obligations or permit existing Loans to
remain outstanding pursuant to Section 6.3 and (c) the date of
(i) prepayment in full by Borrower of the Loans, (ii) the
cancellation and return (or stand-by guarantee) of all Letters of Credit or the
cash collateralization of all Letter of Credit Obligations pursuant to Section 1.5(f),
and (iii) the permanent reduction of the Revolving Loan Commitments to
zero dollars ($0).


 


“Compliance and Pricing Certificate”
has the meaning specified in Section 4.1(l).


 


“Concentration Account” means any cash
collateral account (which may be a deposit account or a securities account)
that is (a) established by Agent from time to time in its sole discretion
to receive cash and Cash Equivalents (or purchase cash or Cash Equivalents with
funds received) from the Credit Parties or Persons acting on their behalf
pursuant to the Loan Documents, (b) with such depositaries and securities
intermediaries as Agent may determine in its sole discretion, (c) in the
name of Agent (although such account may also have words referring to Borrower
and the account’s purpose), (d) under the control of Agent and (e) in
the case of a securities account, with respect to which Agent shall be the
Entitlement Holder (as defined in the Code) and the only Person authorized to
give Entitlement Orders (as defined in the Code).


 


“Consolidated Net Income” has the
meaning specified in of Schedule 2 to Exhibit 4.1(l).


 


“Contingent Obligation” means, as
applied to any Person, any direct or indirect liability of that Person:  (a) with respect to Guaranteed
Indebtedness and with respect to any Indebtedness, lease, dividend or other
obligation of another Person if the purpose or intent of the Person incurring
such liability, or the effect thereof, is to provide assurance to the obligee
of such liability that such liability will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
liability will be protected (in whole or in part) against loss with respect
thereto; (b) with respect to any letter of credit issued for the account
of that Person or as to which that Person is otherwise liable for reimbursement
of drawings; (c) under any foreign exchange contract, currency swap
agreement, interest rate swap agreement or other similar agreement or
arrangement designed to alter the risks of that Person arising from
fluctuations in currency values or interest rates, (d) any agreement,
contract or transaction involving commodity options or future contracts, (e) to
make take-or-pay or similar payments if required regardless of nonperformance
by any other party or parties to an agreement, or (f) pursuant to any
agreement to purchase, repurchase or otherwise acquire any obligation or any
property constituting security therefor, to provide funds for the payment or
discharge of such obligation or to maintain the solvency, financial condition
or any balance sheet item or level of income of another.  The amount of any Contingent Obligation shall
be equal to the amount of the obligation so guaranteed or otherwise supported
or, if not a fixed and determined amount, the maximum amount so guaranteed.


 


“Continuing Directors” shall mean the
directors of Holdings on the Original Closing Date, after giving effect to the
transactions contemplated hereby, and each other director, if, in each case,
such other directors’ nomination for election to the board of directors of
Holdings (or the Qualifying IPO Issuer after a Qualifying IPO) is recommended
by at least two-thirds


 


A-9





















 


of the then Continuing
Directors or such other director is approved by, or receives the vote of, the
Permitted Holders in his or her election by the stockholders of Holdings (or
the Qualifying IPO Issuer after a Qualifying IPO).


 


“Contractual Obligations” means, as
applied to any Person, any indenture, mortgage, deed of trust, contract,
undertaking, agreement or other instrument to which that Person is a party or
by which it or any of its properties is bound or to which it or any of its
properties is subject including the Related Transaction Documents.


 


“Control Agreements” means:


 


(a)           in
the case of any bank account, a tri-party deposit account control agreement by
and among the applicable Credit Party, Agent and the depository, in form
customarily signed by Agent and otherwise in form and substance satisfactory in
all respects to Agent (it being understood a form customarily signed by Agent
is satisfactory) pursuant to which such depository acknowledges the security
interest of Agent in the deposit account, agrees to comply with instructions
originated by Agent directing disposition of the funds in the bank account
without further consent from such Credit Party or Subsidiary, and agrees to
subordinate and limit any security interest the bank may have in such bank
account on terms satisfactory to Agent;


 


(b)           in
the case of any securities account, a tri-party securities account control
agreement by and among the applicable Credit Party, Agent and the securities
intermediary, in form customarily signed by Agent and otherwise in form and
substance satisfactory in all respects to Agent (it being understood a form
customarily signed by Agent is satisfactory) pursuant to which such securities
intermediary acknowledges the security interest of Agent in the securities
account, agrees to comply with instructions originated by Agent directing
disposition of the funds in the securities account without further consent from
such Credit Party or Subsidiary, and agrees to subordinate and limit any
security interest the securities intermediary may have in such securities
account on terms satisfactory to Agent; and


 


(c)           in
the case of any commodities account, a tri-party commodities account control
agreement by and among the applicable Credit Party, Agent and the commodities
intermediary, in form customarily signed by Agent and otherwise in form and
substance satisfactory in all respects to Agent (it being understood a form
customarily signed by Agent is satisfactory) pursuant to which such commodities
intermediary acknowledges the security interest of Agent in the commodities
account, agrees to comply with instructions originated by Agent directing
disposition of the funds in the commodities account without further consent
from such Credit Party or Subsidiary, and agrees to subordinate and limit any
security interest the commodities intermediary may have in such commodities
account on terms satisfactory to Agent.


 


“Copyright License” means any and all
rights nor owned or hereafter acquired by any Credit Party under any written
agreement granting any right to use any Copyright or Copyright registration.


 


A-10





















 


“Copyright Security Agreements” means
the Copyright Security Agreements made in favor of Agent, on behalf of itself
and the Secured Parties, by each applicable Credit Party.


 


“Copyrights” means all of the
following now owned or hereafter adopted or acquired by any Credit Party: (a) all
copyrights and General Intangibles of like nature (whether registered or
unregistered), all registrations and recordings thereof, and all applications
in connection therewith, including all registrations, recordings and
applications in the United States Copyright Office or in any similar office or
agency of the United States, any state or territory thereof, or any other
country or any political subdivision thereof; and (b) all reissues,
extensions or renewals thereof.


 


“Cost” means, in respect of the cost
of acquisition by Borrower or any Eligible Credit Party of any Rental Fleet and
Equipment, the net cost of such Rental Fleet and Equipment to such Person after
all cash and other discounts, premiums, rebates, advertising and other
allowances and all other discounts or other allowances which may be allowed or
taken by such Person against the purchase price of such Rental Fleet and
Equipment.


 


“Credit Parties” means Holdings,
Borrower, Finance Corp., each of their respective Subsidiaries and each other
Person, in each case, who executes this Agreement as a “Credit Party” or who
executes the Guaranty or other guarantee of the Obligations or who grants a
Lien on all or part of its assets to secure all of part of the Obligations.


 


“Currency Agreement” means any foreign
exchange contracts, currency swap agreements or other similar agreements or
arrangements designed to protect Borrower or any Subsidiary of Borrower against
fluctuations in currency values.


 


“Current Assets” means, with respect
to any Person, all current assets of such Person as of any date of determination
calculated in accordance with GAAP, but excluding cash, cash equivalents and
debts due from Affiliates.


 


“Default” means any event that, with
the passage of time or notice or both, would, unless cured or waived, become an
Event of Default.


 


“Default Rate” has the meaning
specified in Section 1.2(d).


 


“Disbursement Account” has the meaning
specified in Section 1.1(d).


 


“Disqualified Stock” means that
portion of any 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 (other than an event which
would constitute a Change of Control), 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 (except, in each case, upon
the occurrence of a Change of Control) on or prior to the date that is ninety-one
(91) days after the fifth (5th) anniversary of the Original Closing Date.


 


A-11





















 


“Documents” means any “document,” as
such term is defined in the Code, including electronic documents, now owned or
hereafter acquired by any Credit Party, wherever located.


 


“Dollars” or “$” means lawful
currency of the United States of America.


 


“Domestic Subsidiary” means each
Subsidiary of Borrower that is organized under the laws of a State of the
United States of America or under the laws of the United States of America.


 


“EBITDA” has the meaning specified in Schedule 2
to Exhibit 4.1(l).


 


“Eligible Accounts” has the meaning
specified in Section 1.7.


 


“Eligible Accounts Formula” means, on
any date of determination, 85% of the net amount of Eligible Accounts at such
time (as such percentage may be adjusted as provided in Section 1.7).


 


“Eligible Credit Party” means each
Domestic Subsidiary.


 


“Eligible Parts Inventory” has the
meaning has the meaning specified in Section 1.8.


 


“Eligible Parts Inventory Formula”
means, on any date of determination, the lesser of (i) $5,000,000 and (ii) 60%
of the value of Eligible Parts Inventory valued at the lower of cost
(determined on a first-in, first-out basis in accordance with GAAP) or market
(determined in accordance with GAAP) (as such percentage may be adjusted as
provided in Section 1.8).


 


“Eligible Rental Fleet and Equipment”
has the meaning specified in Section 1.9.


 


“Eligible Rental Fleet and Equipment
Formula” means, on any date of determination, the lesser of (i) the
Rental Fleet and Equipment OLV Amount and (ii) 100% of the Net Book Value
of Eligible Rental Fleet and Equipment (as such percentages may be adjusted as
provided in Section 1.9).


 


“Environmental Laws” means all applicable
federal, state, local and foreign laws, statutes, ordinances, codes, rules,
standards and regulations, now or hereafter in effect, and any applicable and
legally enforceable judicial or administrative interpretation thereof,
including any applicable judicial or administrative order, consent decree,
order or judgment, imposing liability or standards of conduct for or relating
to the regulation and protection of (i) human health and safety (to the
extent related to exposure to Hazardous Materials) and (ii) the
environment and natural resources (including ambient air, surface water,
groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic
species and vegetation).  Environmental
Laws include the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) (“CERCLA”);
the Hazardous Materials Transportation Authorization Act of 1994 (49 U.S.C. §§ 5101
et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. §§ 136 et seq.); the Solid Waste Disposal Act (42 U.S.C. §§ 6901
et seq.); the Toxic Substance Control Act (15 U.S.C. §§ 2601 et
seq.); the Clean Air Act (42 U.S.C. §§ 7401 et seq.);


 


A-12





















 


the Federal Water Pollution
Control Act (33 U.S.C. §§ 1251 et seq.); the Occupational Safety
and Health Act (29 U.S.C. §§ 651 et seq.); and the Safe Drinking
Water Act (42 U.S.C. §§ 300(f) et seq.), and any and all
regulations promulgated thereunder, and all analogous state, local and foreign
counterparts or equivalents and any environmental transfer of ownership
notification or approval statutes.


 


“Environmental Liabilities” means,
with respect to any Person, all liabilities, obligations, responsibilities,
response, remedial and removal costs, investigation and feasibility study
costs, capital costs, operation and maintenance costs, losses, damages,
punitive damages, property damages, natural resource damages, consequential
damages, treble damages, costs and expenses (including all reasonable fees,
disbursements and expenses of counsel, experts and consultants), fines,
penalties, sanctions and interest incurred as a result of or related to any
claim, suit, action, investigation, proceeding or demand by any Person, whether
based in contract, tort, implied or express warranty, strict liability,
criminal or civil liability or common law arising under or related to any
Environmental Laws, Environmental Permits, or in connection with any Release or
threatened Release or presence of a Hazardous Material whether on, at, in,
under, from or about or in the vicinity of any real or personal property.


 


“Environmental Permits” means all
permits, licenses, authorizations, certificates, approvals or registrations
required by any Governmental Authority under any Environmental Laws.


 


“Equipment” means all “equipment,” as
such term is defined in the Code, now owned or hereafter acquired by any Credit
Party, wherever located and, in any event, including all such Credit Party’s
machinery and equipment, including processing equipment, conveyors, machine
tools, data processing and computer equipment, including embedded software and
peripheral equipment and all engineering, processing and manufacturing
equipment, office machinery, furniture, materials handling equipment, tools,
attachments, accessories, automotive equipment, trailers, trucks, forklifts,
molds, dies, stamps, motor vehicles, rolling stock and other equipment of every
kind and nature, trade fixtures and fixtures not forming a part of real
property, together with all additions and accessions thereto, replacements
therefor, all parts therefor, all substitutes for any of the foregoing, fuel
therefor, and all manuals, drawings, instructions, warranties and rights with
respect thereto, and all products and proceeds thereof and condemnation awards
and insurance proceeds with respect thereto.


 


“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended from time to time, and any regulations
promulgated thereunder.


 


“ERISA Affiliate” means, with respect
to any Credit Party, any trade or business (whether or not incorporated) that,
together with such Credit Party, are treated as a single employer within the
meaning of Sections 414(b), (c), (m) or (o) of the IRC.


 


“ERISA Event” means, with respect to
any Credit Party or any ERISA Affiliate, (a) any event described in Section 4043(c) of
ERISA with respect to a Title IV Plan; (b) the withdrawal of any Credit
Party or ERISA Affiliate from a Title IV Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (c) the complete or partial withdrawal of any Credit Party or any
ERISA


 


A-13





















 


Affiliate from any
Multiemployer Plan; (d) the filing of a notice of intent to terminate a
Title IV Plan or the treatment of a plan amendment as a termination under Section 4041
of ERISA; (e) the institution of proceedings to terminate a Title IV Plan
or Multiemployer Plan by the PBGC; (f) the failure by any Credit Party or
ERISA Affiliate to make when due required contributions to a Multiemployer Plan
or Title IV Plan unless such failure is cured within 30 days; (g) any
other event or condition that might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan
or for the imposition of liability under Section 4069 or 4212(c) of
ERISA; (h) the termination of a Multiemployer Plan under Section 4041A
of ERISA or the reorganization or insolvency of a Multiemployer Plan under Section 4241
or 4245 of ERISA; or (i) the loss of a Qualified Plan’s qualification or
tax exempt status; or (j) the termination of a Plan described in Section 4064
of ERISA.


 


“ESOP” means a Plan that is intended
to satisfy the requirements of Section 4975(e)(7) of the IRC.


 


“Event of Default” has the meaning
specified in Section 6.1.


 


“Excluded Taxes” has the meaning
specified in Section 1.12(a).


 


“Existing Credit Agreement” means that
certain Credit Agreement, dated as of June 3, 2005, among Parent, NEFF, as
borrower, the financial institutions party thereto as lenders and GE Capital,
as agent.


 


“Existing Letters of Credit” means
each of the Letters of Credit specified on Schedule 1.1(c).


 


“Facility Increase” has the meaning
specified in Section 1.1(a)(iii)


 


“Facility Increase Date” has the
meaning specified in Section 1.1(a)(iv).


 


“Facility Increase Notice” means a
notice from Borrower to the Agent requesting the Facility Increase, which may
include any proposed term and condition for such proposed Facility Increase but
shall include in any event the amount of and proposed effective date for such
Facility Increase.


 


“Fair Labor Standards Act” means the
Fair Labor Standards Act, 29 U.S.C. §201 et seq.


 


“Federal Funds Rate” means, for any
day, a floating rate equal to the weighted average of the rates on overnight
federal funds transactions among members of the Federal Reserve System, as
determined by Agent in its sole discretion, which determination shall be final,
binding and conclusive (absent manifest error).


 


“Federal Reserve Board” means the
Board of Governors of the Federal Reserve System.


 


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“Fees” means any and all fees payable
to Agent, L/C Issuer or any Lender pursuant to this Agreement or any of the
other Loan Documents.


 


“Finance Corp.” has the meaning
specified in the introductory paragraph to this Agreement.


 


“Financial Statements” means the
consolidated and consolidating income statements, statements of cash flows and
balance sheets of Holdings and its Subsidiaries delivered in accordance with Sections
4.1(a), 4.1(b), 5.5(a), and 5.5(b).


 


“Fiscal Month” means any of the
monthly accounting periods of Borrower.


 


“Fiscal Quarter” means any of the
quarterly accounting periods of Borrower, ending on March 31, June 30,
September 30 and December 31 of each year.


 


“Fiscal Year” means any of the annual
accounting periods of Borrower ending on December 31 of each year.


 


“Fixtures” means all “fixtures” as
such term is defined in the Code, now owned or hereafter acquired by any Credit
Party.


 


“Foreign Lender” has the meaning
specified in Section 1.12(c).


 


“Foreign Subsidiary” means each
Subsidiary of Borrower other than a Domestic Subsidiary.


 


“Funded Debt” means, with respect to
any Person on any date of determination, without duplication, (a) all
Indebtedness of the type described in clauses (a), (c), (e) and
(j) of the definition thereof, in the amount set forth therefor on the
then applicable balance sheet of the applicable Credit Party and (b) all
Guaranteed Indebtedness consisting of guaranties of Indebtedness of the type
specified in the preceding clause (a).


 


“Funding Date” has the meaning
specified in Section 7.2.


 


“GAAP” means generally accepted
accounting principles in the United States of America, consistently applied.


 


“GE Capital” has the meaning specified
in the introductory paragraph to this Agreement.


 


“GECMG” means GECC Capital Markets
Group, Inc.


 


“General Intangibles” means “general
intangibles,” as such term is defined in the Code, now owned or hereafter
acquired by any Credit Party, including all right, title and interest that such
Credit Party may now or hereafter have in or under any Contractual Obligation,
all payment intangibles, customer lists, Licenses, Copyrights, Trademarks,
Patents, and all applications therefor and reissues, extensions or renewals
thereof, rights in Intellectual Property, interests in partnerships, joint
ventures and other business associations, licenses, permits,


 


A-15





















 


copyrights, trade secrets,
proprietary or confidential information, inventions (whether or not patented or
patentable), technical information, procedures, designs, knowledge, know-how,
software, data bases, data, skill, expertise, experience, processes, models,
drawings, materials and records, goodwill (including the goodwill associated
with any Trademark or Trademark License), all rights and claims in or under insurance
policies (including insurance for fire, damage, loss and casualty, whether
covering personal property, real property, tangible rights or intangible
rights, all liability, life, key man and business interruption insurance, and
all unearned premiums), uncertificated securities, chooses in action, deposit,
checking and other bank accounts, rights to receive tax refunds and other
payments, rights to receive dividends, distributions, cash, Instruments and
other property in respect of or in exchange for pledged Stock and Investment
Property, rights of indemnification, all books and records, correspondence,
credit files, invoices and other papers, including all tapes, cards, computer
runs and other papers and documents in the possession or under the control of
such Credit Party or any computer bureau or service company from time to time
acting for such Credit Party.


 


“Goods” means any “goods,” as such
term is defined in the Code, now owned or hereafter acquired by any Credit
Party, wherever located, including embedded software to the extent included in “goods”
as defined in the Code, manufactured homes, standing timber that is cut and
removed for sale and unborn young of animals.


 


“Governmental Authority” means any
nation or government, any state or other political subdivision thereof, and any
agency, department or other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.


 


“Guaranteed Indebtedness” means, as to
any Person, any obligation of such Person guaranteeing, providing comfort or
otherwise supporting any Indebtedness, lease, dividend, or other obligation (“primary
obligation”) of any other Person (the “primary obligor”) in any
manner, including any obligation or arrangement of such Person to (a) purchase
or repurchase any such primary obligation, (b) advance or supply funds (i) for
the purchase or payment of any such primary obligation or (ii) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet condition of the
primary obligor, (c) purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, (d) protect
the beneficiary of such arrangement from loss (other than product warranties
given in the ordinary course of business) or (e) indemnify the owner of
such primary obligation against loss in respect thereof.  The amount of any Guaranteed Indebtedness at
any time shall be deemed to be an amount equal to the lesser at such time of (i) the
stated or determinable amount of the primary obligation in respect of which
such Guaranteed Indebtedness is incurred and (ii) the maximum amount for
which such Person may be liable pursuant to the terms of the instrument
embodying such Guaranteed Indebtedness, or, if not stated or determinable, the
maximum reasonably anticipated liability (assuming full performance) in respect
thereof.


 


“Guaranties” means, collectively, the
Guaranty and any other guaranty executed by any Guarantor or any other Person
in favor of Agent and the Secured Parties in respect of the Obligations.


 


A-16





















 


“Guarantors” means Holdings, Finance
Corp., each Subsidiary Guarantor, and each other Person, if any, that executes
a guaranty or other similar agreement in favor of Agent, for itself and the
ratable benefit of the Secured Parties, in connection with the transactions
contemplated by this Agreement, the other Loan Documents and the Related Swap
Contracts.


 


“Guaranty” means the Amended and
Restated Guaranty, dated as of the Amendment and Restatement Date, entered into
by Holdings, Finance Corp. and each other Credit Party that is (or hereafter
becomes) party thereto in favor of Agent, for the benefit of the Secured
Parties.


 


“Guaranty Supplement” means a guaranty
supplement, substantially in the form of Exhibit A to the Guaranty or such
other document pursuant to which any Subsidiary of Holdings becomes a party to
the Guaranty after the Amendment and Restatement Date.


 


“Hazardous Material” means any
substance, material or waste that is regulated by, or forms the basis of
liability now or hereafter under, any Environmental Laws, including any
material or substance that is (a) defined as a “solid waste,” “hazardous
waste,” “hazardous material,” “hazardous substance,” “extremely hazardous
waste,”  “restricted hazardous waste,” “pollutant,”
“contaminant,” “hazardous constituent,” “special waste,” “toxic substance” or
other similar term or phrase under any Environmental Laws, or (b) petroleum
or any fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCB’s),
or any radioactive substance.


 


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


 


“Holdings” has the meaning specified
in the introductory paragraph to this Agreement.


 


“Incremental Lenders” has the meaning
specified in Section 1.1(a)(iv).


 


“Incremental Revolving Loan Commitment”
has the meaning specified in Section 1.1(a)(iii).


 


“Indebtedness” means, with respect to
any Person, without duplication (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property payment for which
is deferred six (6) months or more, but excluding obligations to trade
creditors incurred in the ordinary course of business that are unsecured and
not overdue by more than six (6) months unless being contested in good
faith, (b) all reimbursement and other obligations with respect to letters
of credit, bankers’ acceptances and surety bonds, whether or not matured, (c) all
obligations evidenced by notes, bonds, debentures or similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e) all
Capital Lease Obligations and the present value (discounted at the Index Rate
as in effect on the Original Closing Date) of future rental payments under all
synthetic leases, (f) all obligations of such Person under commodity
purchase or option agreements or other commodity price hedging arrangements, in
each case whether contingent or


 


A-17





















 


matured, (g) all
obligations of such Person under any foreign exchange contract, currency swap
agreement, interest rate swap, cap or collar agreement or other similar
agreement or arrangement designed to alter the risks of that Person arising
from fluctuations in currency values or interest rates, in each case whether
contingent or matured, (h) all Indebtedness referred to above secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon or in property or other assets
(including accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness, (i) ”earnouts”
and similar payment obligations, and (j) the Obligations.


 


“Indemnitees” has the meaning
specified in Section 9.1.


 


“Index Rate” means, for any day, a
floating rate equal to the higher of (i) the rate publicly quoted from
time to time by The Wall Street Journal as the “base rate
on corporate loans posted by at least 75% of the nation’s 30 largest banks”
(or, if The Wall Street Journal ceases quoting a base rate of
the type described, the highest per annum rate of interest published by the
Federal Reserve Board in Federal Reserve statistical release H.15 (519)
entitled “Selected Interest Rates” as the Bank prime loan rate or its
equivalent), and (ii) the Federal Funds Rate plus 50 basis points per
annum.  Each change in any interest rate
provided for in this Agreement based upon the Index Rate shall take effect at
the time of such change in the Index Rate.


 


“Index Rate Loan” means a Loan or
portion thereof bearing interest by reference to the Index Rate.


 


“Ineligible Accounts” has the meaning
specified in Section 1.7.


 


“Ineligible Parts Inventory” has the
meaning has the meaning specified in Section 1.8.


 


“Ineligible Rental Fleet and Equipment”
has the meaning specified in Section 1.9.


 


“Instruments” means all “instruments,”
as such term is defined in the Code, now owned or hereafter acquired by any
Credit Party, wherever located, and, in any event, including all certificated
securities, all certificates of deposit, and all promissory notes and other
evidences of indebtedness, other than instruments that constitute, or are a
part of a group of writings that constitute, Chattel Paper.


 


“Intellectual Property” means any and
all Licenses, Patents, Copyrights, Trademarks, and the goodwill associated with
such Trademarks.


 


“Intercreditor Agreement” means,
collectively, (a) that certain intercreditor agreement, dated as of the
Amendment and Restatement Date, among Agent, Junior Collateral Agent and the
Credit Parties, in the form attached hereto as Exhibit B and (b) each
other intercreditor agreement or arrangement entered into after the Amendment
and Restatement Date by Agent (for the benefit of itself and the other Secured
Parties) and the holders of any Second Lien Financing (or the representative,
agent, trustee or other designee of such holders), which agreements and
arrangements shall be in form and substance satisfactory to Agent (and, to the
extent the terms of such agreement, taken as a whole, are less favorable to the
Lenders than the


 


A-18





















 


Intercreditor Agreement entered
into on the Amendment and Restatement Date described in the preceding clause
(a), in form and substance satisfactory to the Requisite Lenders) and shall
set forth the relative lien priority of the Liens granted to Agent for the
benefit of the Secured Parties pursuant to the Loan Documents, in each case,
together with such amendments, supplements or other modifications (including
modifications relating to the addition of additional secured parties having
Liens that are junior in priority to Agent) as may be agreed to by Agent (and,
to the extent the terms of such amendment, supplement or other modification,
taken as a whole, are less favorable to the Lenders than the Intercreditor
Agreement entered into on the Amendment and Restatement Date described in the
preceding clause (a), in form and substance satisfactory to the Requisite
Lenders).


 


“Interest Expense” means interest
expense determined in accordance with GAAP.


 


“Interest Payment Date” means (a) as
to any Index Rate Loan, the first Business Day of each month to occur while
such Loan is outstanding, and (b) as to any LIBOR Loan, the last day of
the applicable LIBOR Period; provided, that in the case of any LIBOR
Period greater than three months in duration, interest shall be payable at
three month intervals and on the last day of such LIBOR Period; and provided
further that, in addition to the foregoing, each of (i) the date
upon which all of the Revolving Loan Commitments have been terminated and the
Loans have been paid in full and (ii) the Commitment Termination Date
shall be deemed to be an “Interest Payment Date” with respect to any
interest that has then accrued under this Agreement or any other Loan Document.


 


“Interest Rate Agreement”  means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or similar
agreement or arrangement designed to protect Borrower against fluctuations in
interest rates.


 


“Inventory” means any “inventory,” as
such term is defined in the Code, including Parts Inventory and Rental Fleet
and Equipment, now owned or hereafter acquired by any Credit Party, wherever
located, including inventory, merchandise, goods and other personal property
that are held by or on behalf of any Credit Party for sale or lease or are
furnished or are to be furnished under a contract of service, or that
constitute raw materials, work in process, finished goods, returned goods,
supplies or materials of any kind, nature or description used or consumed or to
be used or consumed in such Credit Party’s business or in the processing,
production, packaging, promotion, delivery or shipping of the same, including
all supplies and embedded software.


 


“Investment” means (a) any direct
or indirect purchase or other acquisition by Borrower or any of its
Subsidiaries of any Stock, or other ownership interest in, any other Person,
and (b) any direct or indirect loan, advance or capital contribution by
Borrower or any of its Subsidiaries to any other Person, including all
indebtedness and accounts receivable from that other Person that are not
current assets or did not arise from sales to that other Person in the ordinary
course of business.  The amount of any
Investment shall be the original cost of such Investment plus the cost
of all additions thereto, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment less
all returns paid in cash thereon.


 


A-19





















 


“Investment Property” means all “investment
property,” as such term is defined in the Code, now owned or hereafter acquired
by any Credit Party, wherever located, including: (a) all securities,
whether certificated or uncertificated, including stocks, bonds, interests in
limited liability companies, partnership interests, treasuries, certificates of
deposit, and mutual fund shares; (b) all securities entitlements of any
Credit Party,  including the rights of
such Credit Party to any securities account and the financial assets held by a
securities intermediary in such securities account and any free credit balance
or other money owing by any securities intermediary with respect to that
account; (c) all securities accounts of any Credit Party; (d) all
commodity contracts of any Credit Party; and (e) all commodity accounts
held by any Credit Party.


 


“IRC” means the Internal Revenue Code
of 1986, as amended, and all regulations promulgated thereunder.


 


“IRS” means the Internal Revenue
Service.


 


“Joinder Agreement” means a joinder
agreement, in substantially the form of Exhibit A hereto or such
other documentation acceptable to Agent pursuant to which any Subsidiary of
Holdings becomes a party to this Agreement, the Pledge Agreement and the
Security Agreement after the Amendment and Restatement Date.


 


“Junior Collateral Agent” means Wells
Fargo, in its capacity as collateral agent under the Senior Secured Notes
Indenture and each other Person designated as a collateral agent with respect
to any other Series of Parity Junior Lien Debt.


 


 “L/C
Issuer” means (i) solely in the case of any Existing Letters of Credit
and any amendment, extension or renewal thereof in accordance with this
Agreement, Fleet National Bank and (ii) in the case of all other Letters
of Credit, Bank of America or a Subsidiary thereof or a bank or other legally
authorized Person selected by or acceptable to Agent in its sole discretion, in
such Person’s capacity as an issuer of Letters of Credit hereunder.


 


“L/C Sublimit” has the meaning
specified in Section 1.1(c)(i).


 


“Lenders” means GE Capital, the other
Lenders named on the signature pages of this Agreement, and, if any such
Lender shall decide to assign all or any portion of the Obligations as provided
in Section 8.1, such term shall include any Qualified Assignees of
such Lender and each other assignee of such Lender permitted under Section 8.1(a).


 


“Letters of Credit” means standby
letters of credit issued for the account of Borrower by L/C Issuers for which
Agent and Lenders have incurred Letter of Credit Obligations.


 


“Letter of Credit Fee” has the meaning
specified in Section 1.3(c).


 


“Letter of Credit Obligations” means
all outstanding obligations incurred by Agent and Lenders at the request of
Borrower, whether direct or indirect, contingent or otherwise, due or not due,
in connection with the issuance of Letters of Credit by L/C Issuers or the
purchase of a participation as set forth in Section 1.1(c) with
respect to any Letter of Credit.


 


A-20





















 


The amount of such Letter of
Credit Obligations shall equal the maximum amount that may be payable by Agent
and Lenders thereupon or pursuant thereto.


 


“Leverage Ratio” has the meaning
specified in Schedule 2 to Exhibit 4.1(l).


 


“LIBOR Breakage Fee” means an amount
equal to the amount of any losses, expenses, liabilities (including, without
limitation, any loss (including interest paid) and lost opportunity cost in
connection with the re-employment of such funds) that any Lender may sustain as
a result of (a) any default by Borrower in making any borrowing of,
conversion into or continuation of any LIBOR Loan following Borrower’s delivery
to Agent of any LIBOR Loan request in respect thereof or (b) any payment
of a LIBOR Loan on any day that is not the last day of the LIBOR Period
applicable thereto (regardless of the source of such prepayment and whether
voluntary, by acceleration or otherwise). For purposes of calculating amounts
payable to a Lender under Section 1.3(d), each Lender shall be
deemed to have actually funded its relevant LIBOR Loan through the purchase of
a deposit bearing interest at LIBOR in an amount equal to the amount of that
LIBOR Loan and having a maturity and repricing characteristics comparable to
the relevant LIBOR Period; provided, however, that each Lender
may fund each of its LIBOR Loans in any manner it sees fit, and the foregoing
assumption shall be utilized only for the calculation of amounts payable under Section 1.3(d).


 


“LIBOR Business Day” means a Business
Day on which banks in the City of London are generally open for interbank or
foreign exchange transactions.


 


“LIBOR Loans” means a Loan or any
portion thereof bearing interest by reference to the LIBOR Rate.


 


“LIBOR Period” means, with respect to
any LIBOR Loan, each period commencing on a LIBOR Business Day selected by
Borrower pursuant to this Agreement and ending one, two, three or six months
thereafter, as selected by Borrower in its irrevocable notice delivered to
Agent in accordance with Section 1.1(a) or Section 1.2(e),
as the context requires; provided, that the foregoing provision relating
to LIBOR Periods is subject to the following:


 


(a)           if
any LIBOR Period would otherwise end on a day that is not a LIBOR Business Day,
such LIBOR Period shall be extended to the next succeeding LIBOR Business Day
unless the result of such extension would be to carry such LIBOR Period into
another calendar month in which event such LIBOR Period shall end on the
immediately preceding LIBOR Business Day;


 


(b)           any
LIBOR Period that would otherwise extend beyond the date set forth in clause (a) of
the definition of “Commitment Termination Date” shall end two (2) LIBOR
Business Days prior to such date;


 


(c)           any
LIBOR Period that begins on the last LIBOR Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month at the end of such LIBOR Period) shall end on the last LIBOR Business Day
of a calendar month;


 


A-21





















 


(d)           Borrower
shall select LIBOR Periods so as not to require a payment or prepayment of any
LIBOR Loan during a LIBOR Period for such Loan; and


 


(e)           Borrower
shall select LIBOR Periods so that there shall be no more than 5 separate LIBOR
Loans in existence at any one time.


 


“LIBOR Rate” means for each LIBOR
Period, a rate of interest determined by Agent equal to:


 


(a)           the
offered rate for deposits in United States Dollars for the applicable LIBOR
Period that appears on Telerate Page 3750 as of 11:00 a.m. (London
time), on the second full LIBOR Business Day next preceding the first day of
such LIBOR Period (unless such date is not a Business Day, in which event the
next succeeding Business Day will be used); divided by


 


(b)           a
number equal to 1.0 minus the aggregate (but without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on
the day that is two (2) LIBOR Business Days prior to the beginning of such
LIBOR Period (including basic, supplemental, marginal and emergency reserves
under any regulations of the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto, as now and from time to
time in effect) for Eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Federal Reserve Board) that are required to
be maintained by a member bank of the Federal Reserve System.


 


If such interest rates shall cease to be
available from Telerate News Service, the LIBOR Rate shall be determined from
such financial reporting service or other information as shall be available to
Agent.


 


“License” means any Copyright License,
Patent License, Trademark License or other license of rights or interests now
held or hereafter acquired by any Credit Party.


 


“Lien” means any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement, Lien, charge,
claim, security interest, easement or encumbrance, or preference, priority or
other security agreement or preferential arrangement 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 Code or comparable law of any jurisdiction).


 


“Litigation” has the meaning specified
in Section 4.1(i).


 


“Loan Account” as the meaning specified
in Section 1.10.


 


“Loan Documents” means this Agreement,
the Notes, the Collateral Documents, the Agent Fee Letter, the Cash Management
Documents and all other agreements, instruments, documents and certificates
executed and delivered to, or in favor of, Agent or any Lenders and including
all other pledges, powers of attorney, consents, assignments, contracts,
notices, and all other written matter whether heretofore, now or hereafter
executed by or on behalf of any Credit


 


A-22





















 


Party, or any employee of any
Credit Party, and delivered to Agent or any Lender in connection with this
Agreement or the transactions contemplated thereby.  Any reference in this Agreement or any other
Loan Document to a Loan Document shall include all appendices, exhibits or
schedules thereto, and all amendments, restatements, supplements or other
modifications thereto, and shall refer to this Agreement or such Loan Document
as the same may be in effect at any and all times such reference becomes
operative.


 


“Loans” means the Revolving Loan and
the Swing Line Loan.


 


“Management Services Agreement” means
that certain Management Services Agreement, dated as of the Original Closing
Date, by and among Parent, NEFF and Odyssey.


 


“Material Adverse Effect” means a
material adverse effect on (a) the business, operations, condition
(financial or otherwise), assets, liabilities or properties of Holdings and its
Subsidiaries, taken as a whole, (b) the validity or enforceability of any
Loan Document; (c) or material impairment of the ability of the Borrower
to pay and perform their respective Obligations under this Agreement or the
other Loan Documents, (d) the Collateral or Agent’s Liens, on behalf of
itself and Lenders, on the Collateral or the priority of such Liens, or (e) Agent’s
or any Lender’s rights and remedies under this Agreement or the other Loan
Documents.


 


“Maximum Amount” means, as of any date
of determination, an amount equal to the Revolving Loan Commitment of all
Lenders as of that date.  The Maximum
Amount in effect on the Amendment and Restatement Date is equal to
$225,000,000.


 


“Maximum Lawful Rate” has the meaning
specified in Section 1.2(f).


 


“Minimum Availability Block” means
$25,000,000.


 


“Moody’s” means Moody’s Investor’s
Services, Inc.


 


“Mortgages” means each of the
mortgages, deeds of trust, leasehold mortgages, leasehold deeds of trust,
collateral assignments of leases or other real estate security documents
delivered by any Credit Party to Agent on behalf of itself and the Secured
Parties with respect to the Real Estate.


 


“Multiemployer Plan” means a “multiemployer
plan” as defined in Section 4001(a)(3) of ERISA, and to which any
Credit Party or ERISA Affiliate is making, is obligated to make or has made or
been obligated to make, contributions on behalf of participants who are or were
employed by any of them.


 


“NEFF” has the meaning specified in
the introductory paragraph to this Agreement.


 


“NEFF Reorganization” means,
collectively, (i) the transfer by Parent of substantially of its assets
(including the Stock of NEFF) and substantially all of its obligations
(including its obligations under the Senior Subordinated Notes) to NEFF LLC, (ii) the
formation of Finance Corp. for the sole purpose of becoming a corporate co-obligor
in respect of NEFF


 


A-23





















 


LLC’s obligations in respect of
the Senior Secured Notes and the Senior Subordinated Notes and (iii) the
assumption by NEFF LLC of substantially all of the assets and liabilities of
Parent, in each case, on terms and conditions satisfactory to Agent and the
Requisite Lenders.


 


“NEFF Reorganization Documentation”
means, collectively, the assignment and assumption agreement pursuant to which
Parent shall have transferred substantially of its assets (including the Stock
of NEFF) and substantially all of its obligations (including its obligations
under the Senior Subordinated Notes) to NEFF LLC, and all contribution
agreements, bills of sale and all other documents, agreements and instruments
relating to the NEFF Reorganization, in each case, in form and substance
reasonably satisfactory to Agent.


 


“NEFF LLC” has the meaning specified
in the introductory paragraph to this Agreement.


 


“Net Book Value” means Cost minus
accumulated depreciation that is calculated in accordance with GAAP.


 


“Net Proceeds” means cash proceeds
received by Holdings or any of its Subsidiaries from any Asset Disposition
(including insurance proceeds, awards of condemnation, and payments under notes
or other debt securities received in connection with any Asset Disposition),
net of (i) the costs of such Asset Disposition (including taxes
attributable thereto) and (ii) amounts applied to repayment of
Indebtedness (other than the Obligations) secured by a Lien on the asset or
property disposed.


 


“Non-Consenting Lender” has the
meaning specified in Section 9.19(c).


 


“Non-Funding Lender” has the meaning
specified in Section 8.5(a).


 


“Notes” means, collectively, the
Revolving Notes and the Swing Line Note.


 


“Notice of Conversion/Continuation”
has the meaning specified in Section 1.2(e).


 


“Notice of Revolving Credit Advance”
has the meaning specified in Section 1.1(a).


 


“Obligations” means all loans,
advances, debts, liabilities and obligations, for the performance of covenants,
tasks or duties or for payment of monetary amounts (whether or not such
performance is then required or contingent, or such amounts are liquidated or
determinable), including Cash Management Obligations, obligations pursuant to
Related Swap Contracts and Letter of Credit Obligations, owing by any Credit
Party to Agent or any Lender or, solely to the extent arising in respect of any
Cash Management Document or Related Swap Contract, to any Affiliate of any
Lender, and all covenants and duties regarding such amounts, of any kind or
nature, present or future, whether or not evidenced by any note, agreement or
other instrument, arising under this Agreement or any of the other Loan
Documents or any Related Swap Contract. 
This term includes all principal, interest (including all interest that
accrues after the commencement of any case or proceeding by or against any
Credit Party in bankruptcy, whether or not allowed or allowable in such case or
proceeding), Fees, Charges, expenses,


 


A-24





















 


attorneys’ fees and any other
sum chargeable to any Credit Party under this Agreement or any of the other
Loan Documents.


 


“Odyssey” means Odyssey Investment
Partners Fund, LP.


 


“OLV Appraisal” an appraisal, in form
and substance reasonably satisfactory to Agent, conducted by an Approved
Appraiser pursuant to which such Approved Appraiser determines the expected
dollar amount be realized at an orderly negotiated sale of the Rental Fleet and
Equipment held within a reasonable period of time.


 


“OLV Appraisal Presentment Date” means
the date on which an OLV Appraisal is conducted or performed, which date shall
in any event be as of the last day of each Fiscal Quarter of Holdings and its
Subsidiaries.


 


“Orderly Liquidation Value” means,
with respect to any Rental Fleet and Equipment and as determined by an Approved
Appraiser, an expected dollar amount to be realized at an orderly negotiated
sale of such Rental Fleet and Equipment held within a reasonable period of time
(but in any event within 180 days) as of the date of such opinion.


 


“Original Closing Date” means June 3,
2005.


 


“Other Lender” has the meaning
specified in Section 8.5(d).


 


“Other Taxes” has the meaning
specified in Section 1.12(f).


 


“Overadvance” has the meaning specified
in Section 1.1(a).


 


“Parent” has the meaning specified in
the third paragraph of the recitals to this Agreement.


 


“Parts Inventory” means Inventory
owned by Borrower or any Eligible Credit Party which consists of parts for
Rental Fleet and Equipment and parts to be sold or leased by such Person in the
ordinary course of business of such Person, which parts are not incorporated or
installed in or on, or affixed or appurtenant to, any such Inventory or to any
other property and which parts are new, unused, in good condition and are
resalable as new products without repackaging or reconditioning, including
Inventory Borrower or any such Eligible Credit Party currently describes as “inventory
(including whole goods)” but excluding any Inventory that constitutes Rental
Fleet and Equipment.


 


“Parts Inventory Reserve” means a
Reserve to reflect changes in the saleability of any Eligible Parts Inventory
in the ordinary course of business of the Borrower or the applicable Credit
Party or such other factors as may negatively impact the value of any Eligible
Parts Inventory, including, without limitation, Reserves based on obsolescence,
seasonality, theft or other shrinkage, imbalance, change in composition or mix
or markdowns.


 


“Patent License” means rights under
any written agreement now owned or hereafter acquired by any Credit Party
granting any right with respect to any invention on which a Patent is in
existence.


 


A-25





















 


“Patent Security Agreements” means the
Patent Security Agreements made in favor of Agent, on behalf of itself and the
Secured Parties, by each applicable Credit Party.


 


“Patents” means all of the following
in which any Credit Party now holds or hereafter acquires any interest: (a) all
letters patent of the United States or any other country, all registrations and
recordings thereof, and all applications for letters patent of the United
States or of any other country, including registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State or any other country, and (b) all
reissues, continuations, continuations-in-part or extensions thereof.


 


“PBGC” means the Pension Benefit
Guaranty Corporation.


 


“Pension Plan” means a Plan described
in Section 3(2) of ERISA.


 


“Permitted Acquisition” means the
acquisition by purchase or otherwise of all or substantially all of the Stock
of any Target or the assets comprising a business unit of any Target subject to
the satisfaction of the following conditions:


 


(a)           Agent
shall receive at least 15 days’ prior written notice of such proposed Permitted
Acquisition, which notice shall include a reasonably detailed description of
such proposed Permitted Acquisition;


 


(b)           such
Permitted Acquisition shall only involve assets located in the United States
and comprising a business, or those assets of a business, of the type permitted
under Section 3.9;


 


(c)           such
Permitted Acquisition shall be consensual and shall have been approved by at
least a majority of the Target’s board of directors or similar governing body;


 


(d)           the
purchase price payable in connection with all Permitted Acquisitions, together
with the principal amount of all Indebtedness assumed in connection with all
such Permitted Acquisitions and the amount of all Permitted Earnout Obligations
assumed in connection with such Permitted Acquisitions, shall not exceed during
the term of this Agreement for all Permitted Acquisitions the sum of (i) $100,000,000
in aggregate principal amount and (ii) the aggregate fair value of any
Qualified Stock issued and sold to finance all or any portion of such Permitted
Acquisition; provided, that the Credit Parties shall not be permitted to
finance the purchase price of any Permitted Acquisition with the proceeds of
Revolving Loans unless Borrowing Availability (determined on a pro forma basis
after giving effect to such Permitted Acquisition and all Loans funded and
Letter of Credit Obligations incurred in connection therewith as if made on the
first day of such period and, upon satisfaction of the requirements in Section 2.8(e),
after giving effect to any adjustment to Borrowing Availability in respect of
such Permitted Acquisition) is not less than $37,500,000;


 


(e)           the
business and assets acquired in such Permitted Acquisition shall be free and
clear of all Liens (other than Permitted Encumbrances);


 


(f)            at
or prior to the closing of any Permitted Acquisition, Agent will be granted a
first priority perfected Lien (subject to Permitted Encumbrances) in all assets
and/or


 


A-26





















 


Stock acquired pursuant
thereto, and Holdings and Borrower shall have executed such documents and taken
such actions as may be required by Agent in connection therewith;


 


(g)           Concurrently
with delivery of the notice referred to in clause (a) above,
Borrower shall have delivered to Agent, in form and substance reasonably
satisfactory to Agent:


 


(i)            a
pro forma consolidated balance sheet and income statement of Holdings and its
Subsidiaries (including Target) (the “Acquisition Pro Forma”), based on
the most recently available financial statements, but taking into account such
Permitted Acquisition and the funding of all Loans and other Indebtedness
incurred in connection therewith, and such Acquisition Pro Forma shall be in
form and substance satisfactory to Agent;


 


(ii)           such
financial and other information as may be available to any of the Credit
Parties with respect to Target and/or the assets acquired in connection with
such Permitted Acquisition;


 


(iii)          in
the case of any Permitted Acquisition for which the aggregate consideration
paid or payable in connection therewith exceeds $25,000,000, updated versions
of the most recently delivered Projections covering the period commencing on
the date of such Permitted Acquisition and ending on the last day of the first
full Fiscal Year occurring after the anticipated closing date of such Permitted
Acquisition and otherwise prepared in the same manner as the Projections (the “Acquisition
Projections”) and based upon historical financial data of a recent date
reasonably satisfactory to Agent, taking into account such Permitted
Acquisition; and


 


(iv)          a
certificate of the chief financial officer of Borrower to the effect that: (A) Holdings
and its Subsidiaries will be, on a consolidated basis, Solvent upon the
consummation of the Permitted Acquisition; (B) the Acquisition Projections
represent and will represent as of the date thereof the good faith best
estimate of Holdings and its senior management (it being understood that no
assurance can be made with respect to actual results) and (C) Holdings and
its Subsidiaries have completed their due diligence investigation with respect
to the Target and such Permitted Acquisition, which investigation was conducted
in a manner similar to that which would have been conducted by a prudent
purchaser of a comparable business and the results of which investigation were,
to the extent requested by Agent, delivered to Agent and Lenders;


 


(i)            on
or prior to the date of such Permitted Acquisition, Agent shall have received,
in form and substance reasonably satisfactory to Agent, copies of the
acquisition agreement and related agreements and instruments, and all opinions,
certificates, lien search results and other documents reasonably requested by
Agent, including those specified in Section 2.8; and


 


(j)            at
the time of such Permitted Acquisition and after giving effect thereto, no
Default or Event of Default has occurred and is continuing.


 


Notwithstanding the foregoing, the Accounts,
Parts Inventory and Rental Fleet and Equipment of the Target shall not be
included in the Borrowing Base until the requirements of Section 2.8(e) have
been satisfied.


 


A-27


















 


“Permitted Earnout Obligations” means
an unsecured obligation to pay the Seller in a Permitted Acquisition a future
payment that is contingent upon the financial performance of the business
acquired in such Permitted Acquisition exceeding a specified benchmark level,
which payment becomes payable when such excess financial performance is
achieved.


 


“Permitted Encumbrances” has the
meaning specified in Section 3.2.


 


“Permitted Holders” means Odyssey, its
Affiliates and any general or limited partners on the date of this Agreement of
Odyssey as of the Original Closing Date.


 


“Permitted Liens” means the following
Liens, security interests or other encumbrances:


 


(a)           Liens
for taxes or assessments or other governmental Charges not yet due and payable;


 


(b)           pledges
or deposits of money securing statutory obligations under workmen’s
compensation, unemployment insurance, social security or public liability laws
or similar legislation (excluding Liens under ERISA);


 


(c)           pledges
or deposits of money securing bids, tenders, contracts (other than contracts
for the payment of money) or leases to which any Credit Party is a party as
lessee made in the ordinary course of business;


 


(d)           inchoate
and unperfected workers’, mechanics’  or
similar Liens arising in the ordinary course of business, so long as such Liens
attach only to Equipment, Fixtures and/or Real Estate;


 


(e)           subject
to Section 2.6, statutory Liens of landlords 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;


 


(f)            subject
to Section 2.6 and solely to the extent that such Liens attach only
to Inventory, Liens of carriers, warehousemen, suppliers or other similar
possessory Liens arising in the ordinary course of business to the extent such
amounts are 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;


 


(g)           deposits
securing, or in lieu of, surety, appeal or customs bonds in proceedings to
which any Credit Party is a party;


 


(h)           any
attachment or judgment Lien not constituting an Event of Default under Section 6.1;


 


(i)            zoning
restrictions, easements, licenses, or other restrictions on the use of any Real
Estate or other minor irregularities in title (including leasehold title)
thereto, so long as the same do not materially impair the use, value, or
marketability of such Real Estate;


 


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(j)            Liens,
presently existing or hereafter created, in favor of the Agent, for the benefit
of the Secured Parties, securing the Obligations;


 


(k)           leases
and subleases of property granted by a Credit Party to other Persons in the
ordinary course and consistent with past practice so long as such lease or
sublease does not materially interfere with the conduct of such Credit Party’s
business or adversely affect the Liens granted to the Agent pursuant to the
Collateral Documents;


 


(l)            Liens
in favor of banking institutions arising by operation of law, encumbering
deposits (including rights of setoff) held by such banking institution in the
ordinary course of business; and


 


(m)          Liens
encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of Borrower or any of its
Subsidiaries, including rights of offset and set-off.


 


“Permitted 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 accrued and unpaid interest,
capitalized interest added to principal or premiums required by the instruments
governing such existing or future Indebtedness as in effect at the time of
issuance thereof (“Permitted Increases”) and fees and expenses in
connection therewith; provided, that:


 


(a)           such
Indebtedness (i) is not scheduled to mature prior to the date that is the
seventh (7th) anniversary of the Original Closing Date, (ii) has no
scheduled amortization or payments of principal (other than, in the case of any
loans constituting a Second Lien Financing, nominal scheduled amortization
payments not to exceed one percent (1%) per annum of the initial aggregate
principal amount of such Indebtedness) prior to the date that is the seventh
(7th) anniversary of the Original Closing Date and (iii) has market terms
and conditions for securities of the type being issued at such time, determined
at the time of issuance, provided, that (A) in no event shall such
Indebtedness contain maintenance financial covenants, (B) taken as a
whole, the terms and conditions (including mandatory prepayments, repurchase or
redemption provisions, covenants, events of default and, if applicable, as to
collateral) of any such Indebtedness, except as to pricing, shall not be
materially less favorable to the Credit Parties or the Lenders than the terms
and conditions of this Agreement and (C) in the case of any secured
Indebtedness, such Indebtedness shall be subject to an Intercreditor Agreement;
and


 


(b)           any
such event shall:


 


(i)            not
directly or indirectly result in an increase in the aggregate principal amount
of Indebtedness being Refinanced, except to the extent such increase is a
result of a substantially concurrent incurrence of additional Indebtedness:


 


(A)          to
pay Permitted Increases and related fees and expenses; or


 


(B)           otherwise
permitted to be incurred under this Agreement;


 


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(ii)           to
the extent the Indebtedness being Refinanced is Subordinated Indebtedness, be
subordinated to the Obligations on substantially the same terms as the
Indebtedness being Refinanced or as otherwise reasonably acceptable to Agent;


 


(iii)          to
the extent the Indebtedness being Refinanced is secured, be secured by a Lien
that has the same or junior relative priority to the Liens in favor of Agent
for the benefit of the Secured Parties as the Lien securing the Indebtedness
being Refinanced; and


 


(iv)          not
be permitted unless no Event of Default shall have occurred and be continuing
at the time thereof or would result therefrom.


 


“Permitted Second Priority Liens”
means the second priority Liens granted by any Credit Party in favor of the
Junior Collateral Agent for the benefit of the holders of any Second Lien
Financing, which Liens shall be junior in priority to the Liens securing the
Obligations under this Agreement, the other Loan Documents and the Related Swap
Contracts and shall be subject at all times to the terms and conditions of the
Intercreditor Agreement.


 


“Permitted Subordinated Indebtedness”
means any unsecured Indebtedness of Holdings that (a) is expressly
subordinated to the prior payment in full in cash of the Obligations on terms
and conditions no less favorable to the Lenders than the terms and conditions
set forth in the Senior Subordinated Notes Documents, (b) is not scheduled
to mature prior to the date that is the seventh (7th) anniversary of the
Original Closing Date, (c) has no scheduled amortization or payments of
principal prior to the seventh (7th) anniversary of the Original Closing Date
and (d) has market terms and conditions for securities of the type being
issued at such time, determined at the time of issuance, provided, that (i) in
no event shall such Indebtedness contain maintenance financial covenants and (ii) taken
as a whole, the terms and conditions (including mandatory prepayments,
repurchase or redemption provisions, covenants and events of default) of any
such Indebtedness, except as to pricing, shall not be materially less favorable
to the Credit Parties or the Lenders than the terms and conditions of this
Agreement.


 


“Permitted Subordinated Indebtedness
Documents” means, collectively, any documentation governing any Permitted
Subordinated Indebtedness.


 


“Person” means any individual, sole
proprietorship, partnership, joint venture, trust, unincorporated organization,
association, corporation, limited liability company, institution, public
benefit corporation, other entity or government (whether federal, state,
county, city, municipal, local, foreign, or otherwise, including any
instrumentality, division, agency, body or department thereof).


 


“Plan” means, at any time, an “employee
benefit plan,” as defined in Section 3(3) of ERISA, that any Credit
Party or ERISA Affiliate maintains, contributes to or has an obligation to
contribute to on behalf of participants who are or were employed by any Credit
Party.


 


“Pledge Agreement” means the Amended
and Restated Pledge Agreement, dated as of the Amendment and Restatement Date,
entered into by Holdings, Borrower, Finance Corp. and each other Credit Party
that is (or hereafter becomes) party thereto in favor of Agent, for the


 


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benefit of the Secured Parties,
and any other pledge agreement entered into after the Amendment and Restatement
Date by any Credit Party or any other Person.


 


“Pro Forma” means the unaudited
consolidated and consolidating balance sheets of Holdings and its Subsidiaries
prepared in accordance with GAAP as of the Amendment and Restatement Date after
giving effect to the Related Transactions. 
The Pro Forma is annexed hereto as Annex D.


 


“Pro Rata Share” means with respect to
all matters relating to any Lender (a) with respect to the Revolving Loan,
the percentage obtained by dividing (i) the Revolving Loan Commitment of
that Lender by (ii) the aggregate Revolving Loan Commitments of all
Lenders, and (b) with respect to all Loans on and after the Commitment
Termination Date, the percentage obtained by dividing (i) the aggregate
outstanding principal balance of the Loans held by that Lender, by (ii) the
outstanding principal balance of the Loans held by all Lenders, as such
percentages may be adjusted by assignments pursuant to Section 8.1.


 


“Projections” means Holdings’
forecasted consolidated and consolidating: 
(a) balance sheets; (b) profit and loss statements; (c) cash
flow statements; and (d) capitalization statements, all prepared on a
Subsidiary by Subsidiary or division-by-division basis, if applicable, and
otherwise consistent with the historical Financial Statements of Holdings,
together with appropriate supporting details and a statement of underlying
assumptions.


 


“Proposed Change” has the meaning
specified in Section 9.19(c).


 


“Protective Advance” means all
expenses, disbursements and advances made or incurred by Agent or Lenders
pursuant to the Loan Documents after the occurrence and during the continuance
of an Event of Default that Agent, in its sole discretion, deems necessary or
desirable to (a) preserve or protect the Collateral or any portion
thereof, (b) to enhance the likelihood, or maximize the amount, of
repayment of the Obligations or (c) provide for the payment of
unanticipated liabilities of any Credit Party arising after the Amendment and
Restatement Date.


 


“Purchase Money Obligation” has the
meaning specified in Section 9-103 of the Code.


 


“Qualified Assignee” means (a) (i) any
Lender, (ii) any Affiliate of any Lender and (iii) with respect to
any Lender that is an investment fund that invests in commercial loans, any
other investment fund that invests in commercial loans and that is managed or
advised by the same investment advisor as such Lender or by an Affiliate of
such investment advisor (each such Person described in this clause (iii),
an “Approved Fund”), and (b) any commercial bank, savings and loan
association or savings bank or any other entity which is an “accredited
investor” (as defined in Regulation D under the Securities Act of 1933) which
extends credit or buys loans as one of its businesses, including insurance
companies, mutual funds, lease financing companies and commercial finance
companies, in each case, which has a rating of BBB or higher from S&P and a
rating of Baa2 or higher from Moody’s at the date that it becomes a Lender and
which, through its applicable lending office, is capable of lending to Borrower
without the imposition of any withholding or similar taxes; provided,
that, other than in the case of any assignments made


 


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following the commencement of
any workout, restructuring or foreclosure proceeding, no Person determined by
Agent to be acting in the capacity of a vulture fund or distressed debt
purchaser shall be a Qualified Assignee; and provided, further,
no Person or Affiliate of such Person (other than a Person that is already a
Lender) holding Subordinated Indebtedness or Stock issued by any Credit Party
shall be a Qualified Assignee.


 


“Qualified Plan” means a Pension Plan
that is intended to be tax-qualified under Section 401(a) of the IRC.


 


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


 


“Qualifying IPO” means the issuance by
the Qualifying IPO Issuer of its common Stock in an underwritten primary public
offering (other than a public offering pursuant to a registration statement on Form S-8)
pursuant to an effective registration statement filed with the Securities and
Exchange Commission in accordance with the Securities Act of 1933 (whether
alone or in connection with a secondary public offering).


 


“Qualifying IPO Issuer” means
Holdings, Parent or any other corporation or other legal entity which owns,
directly or indirectly, 100% of the outstanding Stock of Holdings.


 


“Real Estate” has the meaning
specified in Section 5.12.


 


“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.


 


“Refunded Swing Line Loan” has the
meaning specified in Section 1.1(b)(iii).


 


“Related Swap Contracts” means each
Interest Rate Agreement entered into between Borrower or any other Credit Party
with Agent or any Person that was a Lender or an Affiliate of Agent or any
Lender at the time it entered into such Interest Rate Agreement.


 


“Related Transactions” means the NEFF
Reorganization, the borrowing of Revolving Loans on the Amendment and
Restatement Date, the amendment of the Senior Subordinated Notes Indenture on
the Amendment and Restatement Date to permit the NEFF Reorganization and
related transactions, the incurrence of the Senior Secured Notes and the
refinancing of the Bridge Loans with the proceeds thereof, the payment of all
Fees, costs and expenses associated with all of the foregoing and the execution
and delivery of all of the Related Transaction Documents.


 


“Related Transaction Documents” means
the Loan Documents, the Senior Subordinated Notes Documents, the Senior Secured
Notes Documents, the NEFF Reorganization Documents, the Intercreditor Agreement
and all other agreements or instruments executed in connection with the Related
Transactions.


 


“Release” means any release,
threatened release, spill, emission, leaking, pumping, pouring, emitting,
emptying, escape, injection, deposit, disposal, discharge, dispersal,


 


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dumping, leaching or migration
of Hazardous Material in the indoor or outdoor environment, including the
movement of Hazardous Material through or in the air, soil, surface water,
ground water or property.


 


“Rent Reserve” means, with respect to
any property of any Credit Party at which any Collateral is located but for
which such Credit Party has not obtained a landlord’s agreement, mortgagee
agreement or bailee letter, as applicable, in accordance with Section 2.6,
an amount equal to three (3) months estimated mortgage or rental payments
for such property plus any other fees or charges owing by such Credit Party to
each applicable landlord, mortgagee or bailee, as applicable, that has not duly
executed and delivered to Agent a landlord’s agreement, mortgagee agreement or
bailee letter or other subordination of security interest, in form and
substance reasonably satisfactory to Agent; provided, however, that any of the foregoing amount shall
be adjusted from time to time hereafter upon (a) delivery to the Agent of
any such acceptable waiver or subordination, (b) the opening or closing of
a Collateral location and/or (c) any change in the amount of rental,
storage or processor payments or similar charges.


 


“Rental Fleet and Equipment” means
Inventory which is of a type offered for sale or lease by Borrower or any
Eligible Credit Party in the ordinary course of business of Borrower or any
Eligible Credit Party including Inventory of Borrower or such Eligible Credit
Party currently described as “rental equipment, net” but excluding any
Inventory that constitutes Parts Inventory.


 


“Rental Fleet and Equipment OLV Amount”
means (a) on any OLV Appraisal Presentment Date, 80% of the Orderly
Liquidation Value of Eligible Rental Fleet and Equipment and (b) on any
date following the most recent OLV Appraisal Presentment Date, 80% of the
Rental Fleet and Equipment OLV Adjusted Amount, in each case, as such
percentages may be reduced as provided in Section 1.9.


 


“Rental Fleet and Equipment OLV Adjusted
Amount” means, on any date of determination, (a) the Net Book Value of
Eligible Rental Fleet and Equipment multiplied by (b) the Rental
Fleet and Equipment OLV Adjustment Percentage.


 


“Rental Fleet and Equipment OLV Adjustment
Percentage” means, on any date of determination, a percentage equal to (a) the
Orderly Liquidation Value of Rental Fleet and Equipment as of the most recent
OLV Appraisal Presentment Date divided by (b) the Net Book Value of
Rental Fleet and Equipment as of the most recent OLV Appraisal Presentment
Date.


 


“Rental Payments” means rental
payments due to Borrower or any other Subsidiary from the rental of Parts
Inventory or Rental Fleet and Equipment owned by such Person.


 


“Replacement Lender” has the meaning
specified in Section 9.19(a).


 


“Requisite Lenders” means Lenders
having (a) more than 50% of the Revolving Loan Commitments of all Lenders,
or (b) if the Revolving Loan Commitments have been terminated, more than
50% of the aggregate outstanding amount of the Loans.


 


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“Reserves” means, on any date of
determination, with respect to the Borrowing Base, reserves established by
Agent from time to time against the Borrowing Base or any component thereof in
an amount equal to the sum of, without duplication, the following:


 


(a)           the
Parts Inventory Reserve;


 


(b)           all
amounts of past due rent, fees or other charges owing at such time by any
Credit Party to any landlord of any premises where any of the Collateral
is located or to any processor, repairman, mechanic or other Person who is in
possession of any Collateral or has asserted any Lien or claim thereto;


 


(c)           any
amounts which any Credit Party is obligated to pay pursuant to the provisions
of any of the Loan Documents that Agent or any Lender elects to pay for
the account of such Credit Party in accordance with authority for such
election contained in any of the Loan Documents;


 


(d)           the
aggregate amount of reserves established by Agent in respect of Banking
Relationship Debt;


 


(e)           any
Rent Reserve; and


 


(f)            such
additional reserves, in such amounts and with respect to such matters as Agent
in its good faith credit judgment exercised reasonably may elect to impose from
time to time.  Without limiting the
generality of the foregoing, Reserves established to ensure the payment of
accrued Interest Expense on Indebtedness shall be deemed to be a reasonable
exercise of Agent’s credit judgment.


 


“Restricted Payment” means, with
respect to any Credit Party (a) the declaration or payment of any dividend
or the incurrence of any liability to make any other payment or distribution of
cash or other property or assets in respect of Stock; (b) any payment on
account of the purchase, redemption, defeasance, sinking fund or other
retirement of such Credit Party’s Stock or any other payment or distribution
made in respect thereof, either directly or indirectly; (c) any payment or
prepayment of principal of, premium, if any, or interest, fees or other charges
on or with respect to, and any redemption, purchase, retirement, defeasance,
sinking fund or similar payment and any claim for rescission with respect to,
any Subordinated Indebtedness; (d) any payment made to redeem, purchase,
repurchase or retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire Stock of such Credit Party now or hereafter
outstanding; (e) any payment of a claim for the rescission of the purchase
or sale of, or for material damages arising from the purchase or sale of, any
shares of such Credit Party’s Stock or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim for
damages or rescission; (f) any payment, loan, contribution, or other
transfer of funds or other property to any other Stockholder (including the
Permitted Holders) of such Credit Party other than payment of compensation in
the ordinary course of business to Stockholders who are employees of such
Credit Party; and (g) any payment of management fees (or other fees of a
similar nature), out-of-pocket expenses or indemnification payments in
connection therewith by such Credit Party to any Stockholder of such Credit
Party or its Affiliates.


 


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“Retiree Welfare Plan” means, at any
time, a Welfare Plan that provides for continuing coverage or benefits for any
participant or any beneficiary of a participant after such participant’s
termination of employment, other than continuation coverage provided pursuant
to Section 4980B of the IRC and at the sole expense of the participant or
the beneficiary of the participant.


 


“Revolving Credit Advance” has the
meaning specified in Section 1.1(a).


 


“Revolving Loan(s)” means, at any
time, the sum of (a) the aggregate amount of Revolving Credit Advances
outstanding to Borrower (including Swing Line Advances) at any time (including
after giving effect to any Facility Increase) plus (b) the
aggregate Letter of Credit Obligations incurred on behalf of Borrower.  Unless the context otherwise requires,
references to the outstanding principal balance of the Revolving Loan shall
include the outstanding balance of Letter of Credit Obligations.


 


“Revolving Loan Commitment” means (a) as
to any Lender, the commitment of such Lender to make its Pro Rata Share of
Revolving Credit Advances or incur its Pro Rata Share of Letter of Credit
Obligations (including, in the case of the Swing Line Lender, its commitment to
make Swing Line Advances as a portion of its Revolving Loan Commitment) as set
forth on Annex B or in the most recent Assignment Agreement, if any,
executed by such Lender and (b) as to all Lenders, the aggregate
commitment of all Lenders to make the Revolving Credit Advances (including, in
the case of the Swing Line Lender, Swing Line Advances) or incur Letter of
Credit Obligations, which aggregate commitment shall be two hundred twenty five
million dollars ($225,000,000) on the Amendment and Restatement Date, as such
amount may be adjusted, if at all, from time to time in accordance with this
Agreement and in each case, as such individual commitment and such aggregate
commitment may be reduced, increased pursuant to the Facility Increase (provided,
that in no event shall the increase in the aggregate commitments pursuant to
the Facility Increase exceed twenty five million dollars ($25,000,000),
amortized or adjusted from time to time, in each case, in accordance with this
Agreement.


 


“Revolving Notes” has the meaning
specified in Section 1.1(a).


 


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


 


“Second Lien Financing” means,
collectively, (a) the Senior Secured Notes and (b) any other secured
Indebtedness to the extent such Indebtedness is permitted to be incurred under Section 3.1,
in each case that (i) is secured by a second priority Lien on the assets
of any Credit Party, which Liens shall be junior in priority to the Liens
securing the Obligations under this Agreement, the other Loan Documents and the
Related Swap Contract and shall be subject at all times to the terms and
conditions of the Intercreditor Agreement, (ii) is not scheduled to mature
prior to the date that is the seventh (7th) anniversary of the Original Closing
Date, (iii) has no scheduled amortization or payments of principal (other
than, in the case of any loans constituting a Second Lien Financing, nominal
scheduled amortization payments not to exceed one percent (1%) per annum of the
initial aggregate principal amount of such Indebtedness) prior to the date that
is the seventh (7th) anniversary of the Original Closing Date and (iv) has
market


 


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terms and conditions for
securities of the type being issued at such time, determined at the time of issuance,
provided, that (A) in no event shall such Indebtedness contain
maintenance financial covenants, (B) taken as a whole, the terms and
conditions (including mandatory prepayments, repurchase or redemption
provisions, covenants, events of default and as to collateral) of any such
Indebtedness, except as to pricing, shall not be materially less favorable to
the Credit Parties or the Lenders than the terms and conditions of this
Agreement and (C) the holders of such Indebtedness shall be become party
to, or become bound by the terms of, the Intercreditor Agreement.


 


“Second Lien Financing Documentation”
means the Senior Secured Notes Documents and any other documentation governing
any other Second Lien Financing.


 


“Secured Parties” means, collectively,
Agent, Lenders, L/C Issuers and any other holder of an Obligation.


 


“Security Agreement” means the Amended
and Restated Security Agreement, dated as of the Amendment and Restatement
Date, entered into by Holdings, Borrower, Finance Corp. and each other Credit
Party that is (or hereafter becomes) party thereto in favor of Agent, for the
benefit of the Secured Parties, and any other security agreement entered into
after the Amendment and Restatement Date by any Credit Party or any other
Person.


 


“Senior Secured Notes” means
$245,000,000 aggregate original principal amount of Holdings’    %
Second Priority Senior Secured Notes due 2012 (including any private exchange
notes and replacement notes related thereto).


 


“Senior Secured Notes Documents” means
(a) the Senior Secured Notes Indenture, (b) the Senior Secured Notes,
(c) any guaranty agreement given by any Subsidiary of Holdings in respect
of the Senior Secured Notes and (d) all other documents, agreements and
instruments relating to the Senior Secured Notes, in each case, as amended to
the extent permitted by this Agreement.


 


“Senior Secured Notes Indenture” means
that certain Indenture dated as of July 8, 2005, among NEFF LLC and
Finance Corp., as co-issuers, NEFF LLC’s Subsidiaries party thereto as
guarantors, and the Trustee, governing the terms of the Senior Secured Notes,
as amended to the extent permitted by this Agreement.


 


“Senior Subordinated Notes” means
$80,000,000 aggregate original principal amount of Holdings’ 13% Senior
Subordinated Notes due 2013 (together with any interest and liquidated damages
payable thereon in kind through the issuance of additional Senior Subordinated
Notes of the same series or capitalized to the principal amount thereof).


 


“Senior Subordinated Notes Documents”
means (a) the Senior Subordinated Notes Indenture, (b) the Senior
Subordinated Notes, (c) any guaranty agreement given by any Subsidiary of
Holdings in respect of the Senior Subordinated Notes and (d) all other
documents, agreements and instruments relating to the Senior Subordinated
Notes, in each case, as amended to the extent permitted by this Agreement.


 


A-36





















 


“Senior Subordinated Notes Indenture”
means that certain Amended and Restated Indenture dated as of July 8, 2005,
by and among Holdings and Finance Corp., as co-issuers, the guarantors named
therein, and Wells Fargo Bank, National Association, as trustee, governing the
terms of the Senior Subordinated Notes.


 


“Series of Parity Junior Lien Debt”
has the meaning specified in the Intercreditor Agreement.


 


“Settlement Date” has the meaning
specified in Section 8.5(a)(ii).


 


“Software” means all “software” as
such term is defined in the Code, now owned or hereafter acquired by any Credit
Party, other than software embedded in any category of Goods, including all
computer programs and all supporting information provided in connection with a
transaction related to any program.


 


“Solvent” means, with respect to any
Person on a particular date, that on such date (a) the fair value of the
property of such Person is greater than the total amount of liabilities,
including subordinated and contingent liabilities, of such Person; (b) the
present fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on
its debts and liabilities, including subordinated and contingent liabilities as
they become absolute and matured; (c) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay as such debts and liabilities mature; and (d) such Person
is not engaged in a business or transaction, and is not about to engage in a
business or transaction, for which such Person’s property would constitute an
unreasonably small capital.  The amount
of contingent liabilities (such as Litigation, guaranties and pension plan
liabilities) at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at the time, represents the amount that
can be reasonably be expected to become an actual or matured liability.


 


“Statement” has the meaning specified
in Section 4.1(b).


 


“Stock” means all shares, options,
warrants, general or limited partnership interests, membership interests or
other equivalents (regardless of how designated) of or in a corporation,
partnership, limited liability company or equivalent entity whether voting or
nonvoting, including common stock, preferred stock or any other “equity
security” (as such term is defined in Rule 3a11-1 of the General Rules and
Regulations promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934).


 


“Stockholder” means, with respect to
any Person, each holder of Stock of such Person.


 


“Subordinated Indebtedness” means the
Indebtedness of Holdings evidenced by the Senior Subordinated Notes or any
Permitted Subordinated Indebtedness.


 


“Subordinated Indebtedness Documents”
means, collectively, the Senior Subordinated Notes Documents and the Permitted
Subordinated Indebtedness Documents.


 


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“Subordinated Indenture” means,
collectively, the Senior Subordinated Notes Indenture and any other indenture
or similar agreement governing the terms of any other Subordinated
Indebtedness.


 


“Subsidiary” means, with respect to
any Person, (a) any corporation of which an aggregate of more than 50% of
the outstanding Stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether, at the time,
Stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the
time, directly or indirectly, owned legally or beneficially by such Person or
one or more Subsidiaries of such Person, or with respect to which any such
Person has the right to vote or designate the vote of more than 50% of such
Stock whether by proxy, agreement, operation of law or otherwise, and (b) any
partnership or limited liability company in which such Person and/or one or
more Subsidiaries of such Person shall have an interest (whether in the form of
voting or participation in profits or capital contribution) of more than 50% or
of which any such Person is a general partner or may exercise the powers of a
general partner.  Unless the context
otherwise requires, each reference to a Subsidiary shall be a reference to a
Subsidiary of Holdings.


 


“Subsidiary Guarantor” means each
Subsidiary of Holdings (other than Finance Corp.) that executes a guaranty or
other similar agreement in favor of Agent, for itself and the ratable benefit
of the Secured Parties, in connection with the transactions contemplated by
this Agreement, the other Loan Documents and the Related Swap Contracts.


 


“Supermajority Lenders” means Lenders
having (a) 80% or more of the Revolving Loan Commitments of all Lenders,
or (b) if the Revolving Loan Commitments have been terminated, 80% or more
of the aggregate outstanding amount of the Revolving Loan (with the Swing Line
Loan being attributed to the Lender making such Loan).


 


“Swing Line Advance” has the meaning
specified in Section 1.1(b).


 


“Swing Line Availability” has the
meaning specified in Section 1.1(b).


 


“Swing Line Commitment” means the commitment
of the Swing Line Lender to make Swing Line Advances as set forth on Annex B
to this Agreement, which commitment constitutes a subfacility of the Revolving
Loan Commitment of the Swing Line Lender. 
As of the Amendment and Restatement Date, the Swing Line Commitment is
equal to $15,000,000.


 


“Swing Line Lender” means GE Capital.


 


“Swing Line Loan” means at any time,
the aggregate amount of Swing Line Advances outstanding to Borrower.


 


“Swing Line Note” has the meaning
specified in Section 1.1(b).


 


“Target” has the meaning specified in Section 3.6.


 


“Termination Date” means the date on
which (a) the Loans have been repaid in full, (b) all other
Obligations under this Agreement and the other Loan Documents (other than


 


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contingent indemnification
Obligations to the extent no claim has been asserted) have been completely
discharged, (c) all Letter of Credit Obligations have been cash
collateralized in the amount set forth in Section 1.5(f), cancelled
or backed by standby letters of credit acceptable to Agent and (d) no
Borrower shall have any further right to borrow any monies or request any other
extensions of credit under this Agreement or the other Loan Documents.


 


“Title IV Plan” means a Pension Plan
(other than a Multiemployer Plan), that is covered by Title IV of ERISA, and
that Borrower, any other Credit Party or any of their respective ERISA
Affiliates maintains, contributes to or has an obligation to contribute to on
behalf of participants who are or were employed by any of them.


 


“Trade-In Transaction” means a
transaction in which Borrower or any of its Subsidiaries trades in Inventory or
Equipment to a dealer or an original equipment manufacturer in consideration
for cash, credit or similar Inventory or Equipment or a combination thereof.


 


“Trademark Security Agreements” means
the Trademark Security Agreements made in favor of Agent, on behalf of itself
and the Secured Parties, by each applicable Credit Party.


 


“Trademark License” means rights under
any written agreement now owned or hereafter acquired by any Credit Party
granting any right to use any Trademark.


 


“Trademarks” means all of the
following now owned or hereafter adopted or acquired by any Credit Party: (a) all
trademarks, trade names, corporate names, business names, trade styles, service
marks, logos, internet domain names, other source or business identifiers,
prints and labels on which any of the foregoing have appeared or appear,
designs and general intangibles of like nature (whether registered or
unregistered), all registrations and recordings thereof, and all applications
in connection therewith, including registrations, recordings and applications
in the United States Patent and Trademark Office or in any similar office or agency
of the United States, any state or territory thereof, or any other country or
any political subdivision thereof; (b) all reissues, extensions or
renewals thereof; and (c) all goodwill associated with or symbolized by
any of the foregoing.


 


“Trustee” means Wells Fargo, in its
capacity as trustee under the Senior Secured Notes Indenture.


 


“Unfunded Pension Liability” means, at
any time, the aggregate amount, if any, of the sum of (a) the amount by
which the present value of all accrued benefits under each Title IV Plan
exceeds the fair market value of all assets of such Title IV Plan allocable to
such benefits in accordance with Title IV of ERISA, all determined as of the
most recent valuation date for each such Title IV Plan using the actuarial
assumptions for funding purposes in effect under such Title IV Plan, and (b) for
a period of 5 years following a transaction which might reasonably be expected
to be covered by Section 4069 of ERISA, the liabilities (whether or not
accrued) that could be avoided by any Credit Party or any ERISA Affiliate as a
result of such transaction.


 


“Unused Line Fee” has the meaning
specified in Section 1.3.


 


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“Vendor” means any Person (other than
a Vendor Lessor) who sells to Borrower or any Eligible Credit Party Parts
Inventory or Rental Fleet and Equipment to Borrower or any Eligible Credit
Party.


 


“Vendor Intercreditor Agreement” means
an intercreditor agreement, in form and substance acceptable to Agent, between
Agent, for the benefit of the Secured Parties, the Credit Parties and any
Vendor to whom any Credit Party has granted a Lien on any part of the
Collateral.


 


“Vendor Lease” means a lease pursuant
to which any Person leases Parts Inventory or Rental Fleet and Equipment from a
Vendor Lessor, whether or not such lease constitutes an operating lease or a
Capital Lease under GAAP and whether or not such lease constitutes a true lease
or a secured transaction under the Code or other applicable law.


 


“Vendor Lessor” means any Person who
leases Parts Inventory or Rental Fleet and Equipment to a Borrower pursuant to
a Vendor Lease.


 


“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.


 


“Welfare Plan” means a Plan described
in Section 3(1) of ERISA.


 


“Wells Fargo” means Wells Fargo Bank,
National Association.


 


Rules of construction with respect to
accounting terms used in this Agreement or the other Loan Documents shall be as
set forth or referred to in this Annex A.  All other undefined terms contained in any of
the Loan Documents shall, unless the context indicates otherwise, have the
meanings provided for by the Code to the extent the same are used or defined
therein; in the event that any term is defined differently in different
Articles or Divisions of the Code, the definition contained in Article or
Division 9 shall control.  Unless
otherwise specified, references in this Agreement or any other Loan Document or
any of the Appendices, Section, subsection or clause hereof or thereof
refer to such Section, subsection or clause as contained in this Agreement
or such Loan Documents, as applicable. 
The words “herein,” “hereof” and “hereunder” and other words of similar
import in this Agreement or any other Loan Document refer to this Agreement or
such other Loan Document, as applicable, as a whole, including all Annexes,
Exhibits and Schedules hereto or thereto, as the same may from time to time be
amended, restated, modified or supplemented, and not to any particular section,
subsection or clause contained in this Agreement, such other Loan Document
or any such Annex, Exhibit or Schedule, as the case may be.


 


Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include
the singular and the plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, feminine and neuter genders.  The words


 


A-40





















 


“including”, “includes” and “include”
shall be deemed to be followed by the words “without limitation”; the word “or”
is not exclusive; references to Persons include their respective successors and
assigns (to the extent and only to the extent permitted by the Loan Documents)
or, in the case of governmental Persons, Persons succeeding to the relevant
functions of such Persons; and all references to statutes and related
regulations shall include any amendments of the same and any successor statutes
and regulations.  Whenever any provision
in any Loan Document refers to the knowledge (or an analogous phrase) of any
Credit Party, such words are intended to signify that such Credit Party has
actual knowledge or awareness of a particular fact or circumstance or that such
Credit Party, if it had exercised reasonable diligence, would have known or
been aware of such fact or circumstance.


 


A-41





















 


ANNEX B

to

AMENDED & RESTATED CREDIT AGREEMENT


 


PRO
RATA SHARES AND REVOLVING LOAN COMMITMENT AMOUNTS


 


	
  LENDER

  	
   

  	
  REVOLVING LOAN

  COMMITMENT

  	
   

  	
  SWING LINE LOAN

  COMMITMENT (IF ANY)

  	
   

  
	
  General
  Electric Capital Corporation

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  Bank of
  America, N.A.

  	
   

  	
  $

  	
  37,500,000

  	
   

  	
   

  	
   

  
	
  GMAC
  Commercial Finance LLC

  	
   

  	
  $

  	
  37,500,000

  	
   

  	
   

  	
   

  
	
  Wachovia
  Bank, National Association

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
   

  	
   

  
	
  The CIT
  Group/Business Credit, Inc.

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
   

  	
   

  
	
  PNC Bank,
  N.A.

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
   

  	
   

  
	
  Union Bank
  of California, N.A.

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  225,000,000

  	
   

  	
  $

  	
  15,000,000

  	
   

  



 


B-1





















 


ANNEX C

to

AMENDED AND RESTATED CREDIT AGREEMENT


 


CLOSING
CHECKLIST


 


A.            LOAN DOCUMENTS AND COLLATERAL MATTERS


 


1.             Amended and Restated Credit Agreement:  This Agreement or counterparts hereof shall
have been duly executed and delivered each Credit Party, Agent and Lenders.


 


2.             Revolving Notes:  Duly executed originals of the Revolving Notes
for each requesting Lender, dated the Amendment and Restatement Date, shall
have been delivered to Agent.


 


3.             Swing Line Notes: Duly executed originals
of the Swing Line Notes for each requesting Lender, dated the Amendment and
Restatement Date, shall have been delivered to Agent.


 


4.             Guaranty: 
Duly executed originals of the Guaranty from Holdings, Finance Corp. and
each other Guarantor (if any) dated the Amendment and Restatement Date shall
have been delivered to Agent.


 


5.             Security Agreement:  Duly executed originals of the Security
Agreement, executed by Borrower, Holdings, Finance Corp. and each other
Guarantor, dated the Amendment and Restatement Date, and all instruments,
documents and agreements executed pursuant thereto shall have been delivered to
Agent.


 


6.             Pledge Agreement:  Duly executed originals of the Pledge
Agreement, executed by Borrower, Holdings, Finance Corp. and each other
Guarantor, dated the Amendment and Restatement Date, and all instruments,
documents and agreements executed pursuant thereto shall have been delivered to
Agent.


 


7.             Intercreditor Agreement:  Duly executed originals of the
Intercreditor Agreement from each Credit Party and the Junior Collateral Agent,
dated the Amendment and Restatement Date, shall have been delivered to Agent.


 


8.             Financing Statements and Lien Matters.


 


(a)           Financing
Statement on Form UCC-1 naming Holdings, as debtor and Agent, as secured
party, in form and substance satisfactory to Agent.


 


(b)           Financing
Statement on Form UCC-1 naming Borrower, as debtor and Agent, as secured
party, in form and substance satisfactory to Agent.


 


(c)           Financing
Statement on Form UCC-1 naming Finance Corp., as debtor and Agent, as
secured party, in form and substance satisfactory to Agent.


 


C-1





















 


(d)           UCC-3
or other appropriate termination statements terminating Liens encumbering the
assets and properties of Parent granted in connection with the Existing Credit
Agreement.


 


B.            CLOSING CERTIFICATES


 


1.             Notice of Revolving Credit Advance:  Duly executed Notice of Revolving Credit
Advance, dated at least one (1) Business Day prior to the Amendment and
Restatement Date, shall have been delivered to Agent and shall request
Revolving Loans to be made available on the Amendment and Restatement Date in
an aggregate amount that does not exceed $10,000,000.


 


2.             Officer’s Certificate:  Duly executed originals of a certificate of
an authorized officer of each Credit Party, dated the Amendment and Restatement
Date, certifying on behalf of such Credit Party that, since December 31,
2004 there has been no Material Adverse Effect.


 


3.             Related Transaction Documents:  Duly executed originals of a certificate of
an authorized officer of each Credit Party, dated the Amendment and Restatement
Date, certifying that the Related Transactions have been (or substantially
contemporaneously with the funding of the Loans on the Amendment and
Restatement Date will be) consummated and attaching thereto copies of each
Related Transaction Document (other than the Loan Documents) and certifying as
to the truth, completeness and correctness of each such Related Transaction
Document, including the Senior Secured Notes Documents and the Senior
Subordinated Notes Documents.


 


4.             Other Documents:  Agent shall have received such other
certificates, documents and agreements respecting any Credit Party as Agent
may, in its sole discretion, request.


 


C.            FINANCIAL MATTERS


 


1.             No Material Adverse Effect:  Since December 31, 2004, there have been
no events or changes in facts or circumstances affecting any Credit Party or
any of its Subsidiaries which individually or in the aggregate have had or
could reasonably be expected to have a Material Adverse Effect.


 


2.             Solvency: 
Agent and Lenders shall be satisfied that on the Amendment and
Restatement Date, before and after giving effect to the Indebtedness borrowed
under this Agreement and incurred under the Senior Secured Notes, Holdings and
its Subsidiaries, on a consolidated basis, are Solvent and shall have received
a certificate of the chief financial officer of Holdings and the Borrower
certifying such Solvency and other related matters as required by Agent.


 


3.             Financial Statements and Projections:  Agent shall have received the Pro
Forma.


 


D.            CORPORATE DOCUMENTS & LEGAL OPINIONS


 


1.             Certificate of Incorporation and Good Standing:  Agent shall have received:


 


C-2





















 


(a)           the
articles or certificate of incorporation or certificate of formation, as
applicable, of Holdings and Finance Corp. and all amendments thereto;


 


(b)           (i) solely
to the extent of any amendments or other modifications thereto since the
Original Closing Date, the articles or certificate of incorporation or
certificate of formation, as applicable, of Borrower and all amendments thereto
or (ii) if there have not been any amendments or other modifications
thereto since the Original Closing Date, a certification of the secretary or
assistant secretary of Borrower to the effect that the articles of
incorporation of Borrower delivered on the Original Closing Date are in full
force and effect on and as of the Amendment and Restatement Date and have not
been in any way amended or otherwise modified;


 


(c)           good
standing certificates (including verification of tax status) for each Credit
Party in such Credit Party’s state of incorporation or formation, as
applicable, each dated a recent date prior to the Amendment and Restatement
Date and certified by the applicable Secretary of State or other authorized
Governmental Authority.


 


2.             By-laws and Resolutions:  Agent shall have received:


 


(a)           the
by-laws or operating agreement of Holdings and Finance Corp., as applicable,
together with all amendments thereto, each certified as of the Amendment and
Restatement Date by such Credit Party’s secretary or an assistant secretary as
being in full force and effect without any modification or amendment;


 


(b)           solely
to the extent of any amendments or other modifications thereto since the
Original Closing Date, the by-laws of Borrower and all amendments thereto or (ii) if
there have not been any amendments or other modifications thereto since the
Original Closing Date, a certification of the secretary or assistant secretary
of Borrower to the effect that the by-laws of Borrower delivered on the
Original Closing Date are in full force and effect on and as of the Amendment
and Restatement Date and have not been in any way amended or otherwise
modified; and


 


(c)           resolutions
of each Credit Party’s Board of Directors, as applicable, approving and
authorizing the execution, delivery and performance of the Loan Documents to
which it is a party and the transactions to be consummated in connection
therewith, each certified as of the Amendment and Restatement Date by such
Credit Party’s secretary or an assistant secretary as being in full force and
effect without any modification or amendment.


 


3.             Incumbency Certificates:  For each Credit Party, Agent shall have
received incumbency certificates and specimen signatures of the officers of
such Credit Party executing any of the Loan Documents, certified as of the
Amendment and Restatement Date by such Credit Party’s secretary or an assistant
secretary as being true, accurate, correct and complete shall have been
delivered to Agent.


 


4.             Opinions of Counsel:  Duly executed originals of an opinion of:


 


C-3





















 


(a)           Latham &
Watkins LLP, special New York and Delaware counsel for the Credit Parties.


 


(b)           Baker &
McKenzie, special Florida counsel for the Credit Parties.


 


E.             OTHER CONDITIONS


 


1.             Payment of Fees:  Holdings and Borrower shall have paid the
Fees required to be paid on the Amendment and Restatement Date, including but
not limited to any Fees due and payable on the Amendment and Restatement Date
pursuant to Section 1.3(e) of the Existing Credit
Agreement and this Agreement.


 


2.             Financing Transactions:


 


(a)           Bridge
Loan Agreement:  Agent shall have
received a duly executed payoff letter from the Bridge Loan Agent, in form and
substance reasonably satisfactory to Agent, as to the termination of the Bridge
Loan Agreement and the obligations thereunder and the release of liens and
other security interests granted to secure such obligations under the Bridge
Loans.


 


(b)           Senior
Subordinated Indenture:  Agent shall have
received satisfactory evidence that Holdings, Borrower, Wells Fargo Bank,
National Association, as trustee, and the guarantors named therein have
executed the Senior Subordinated Notes Indenture.


 


3.             NEFF Reorganization Documentation:  The terms and conditions of the NEFF
Reorganization Documentation shall be reasonably satisfactory to Agent.


 


4.             No Event of Default:  Agent shall be satisfied that no Event of
Default shall have occurred and be continuing under the Existing Credit
Agreement.


 


5.             Approvals; Compliance with Laws:  Copies of any material third-party,
Governmental Authority or other regulatory approvals and consents necessary to
consummate the Loan Documents shall have been delivered to Agent and shall be
final and non-appealable.  Agent shall be
satisfied that there shall be no violation of applicable law, decrees and
material Contractual Obligations by any Credit Party.


 


6.             Other Requirements:  Such other requirements of any Credit Party
as Agent may, in its sole discretion, request.


 


C-4





















 


ANNEX D

to

AMENDED AND RESTATED CREDIT AGREEMENT


 


PRO
FORMA


 


See
attached.


 


 


D-1





















 


ANNEX E

to

AMENDED AND RESTATED CREDIT AGREEMENT


 


LENDERS’
BANK ACCOUNTS


 


	
  Name:

  	
   

  	
  General Electric Capital Corporation

  
	
  Bank:

  	
   

  	
  Deutsche Bank Trust Company Americas

  
	
   

  	
   

  	
  60 Wall Street, New York, New York 10005

  
	
  ABA #:

  	
   

  	
  021-001-033

  
	
  Account #:

  	
   

  	
  502-707-97

  
	
  Account Name:

  	
   

  	
  GECC/ CFI Incoming Funds Account

  
	
  Reference:

  	
   

  	
  Neff Rental, Inc.

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Bank of America, N.A.

  
	
  Bank:

  	
   

  	
  Fleet Bank

  
	
   

  	
   

  	
  1 Constitution Plaza, Hartford, CT, For the
  Account of Fleet Capital Corporation

  
	
  ABA #:

  	
   

  	
  011-900-571

  
	
  Account #:

  	
   

  	
  936-933-7552

  
	
  Reference:

  	
   

  	
  Neff Corp.

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  GMAC Commercial Finance LLC

  
	
  Bank:

  	
   

  	
  Bank One, Michigan

  
	
   

  	
   

  	
  Detroit, Michigan

  
	
  ABA #:

  	
   

  	
  072-000-326

  
	
  Account #:

  	
   

  	
  3613249-84

  
	
  Account Name:

  	
   

  	
  GMAC Commercial Finance LLC

  
	
  Reference:

  	
   

  	
  Neff Rental

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Wachovia Bank, National Association

  
	
  Bank:

  	
   

  	
  Wachovia Bank, NA

  
	
   

  	
   

  	
  Charlotte, NC

  
	
  ABA #:

  	
   

  	
  053-000-219

  
	
  Account #:

  	
   

  	
  2070482789126

  
	
  Account Name:

  	
   

  	
  Leveraged Finance - NC

  
	
  Reference:

  	
   

  	
  Neff

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  The CIT Group/Business Credit, Inc.

  
	
  Bank:

  	
   

  	
  The CIT Group/Business Credit, Inc.

  
	
   

  	
   

  	
  New York, New York

  
	
  ABA #:

  	
   

  	
  021-000-021

  
	
  Account #:

  	
   

  	
  144-0-64425

  
	
  Account Name:

  	
   

  	
  The CIT Group/Business Credit, Inc.

  
	
  Reference:

  	
   

  	
  Neff Rental, Inc.

  



 


E-1





















 


	
  Name:

  	
   

  	
  PNC Bank, N.A.

  
	
  Bank:

  	
   

  	
  PNC Bank, N.A.

  
	
  ABA #:

  	
   

  	
  ###-##-####

  
	
  Account #:

  	
   

  	
  196039957830

  
	
  Account Name:

  	
   

  	
  PNC Business Credit

  
	
  Reference:

  	
   

  	
  Neff Rental

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Union Bank of California, N.A.

  
	
  Bank:

  	
   

  	
  Union Bank of California, N.A.

  
	
   

  	
   

  	
  Monterey Park, CA

  
	
  ABA #:

  	
   

  	
  122-000-496

  
	
  Account #:

  	
   

  	
  95300196431

  
	
  Account Name:

  	
   

  	
  Asset Based Finance Group

  
	
  Reference:

  	
   

  	
  Attn: Commercial Finance

  



 


E-2





















 


EXHIBIT 4.1(d)


 


BORROWING
BASE CERTIFICATE


 


NEFF
RENTAL, INC.


 


Date:                     ,           


 


This Certificate is given by Neff Rental, Inc.
(“Borrower”) pursuant to Section 4.1(d) of that certain
Amended and Restated Credit Agreement dated as of July 8, 2005 among Neff
Rental LLC, as Holdings, Borrower, the other Credit Parties party thereto, the
Lenders from time to time party thereto and General Electric Capital
Corporation, as agent for the Lenders (as such agreement may have been amended,
restated, supplemented or otherwise modified from time to time the “Credit
Agreement”).  Capitalized terms used
herein without definition shall have the meanings set forth in the Credit
Agreement.


 


The undersigned is duly authorized to execute
and deliver this Certificate on behalf of Borrower.  By executing this Certificate such officer
hereby certifies to Agent and Lenders that:


 


(a)           Attached
hereto as Schedule 1 is a calculation of the proposed Borrowing Base for
Borrower as of the above date;


 


(b)           Based
on such schedule, the proposed Borrowing Base as of the above date is $                               ;
and


 


(c)           As
of the date hereof, based on such schedule, Borrowing Availability is $                               .


 


1





















 


IN WITNESS WHEREOF, Borrower has caused this
Certificate to be executed by its                               this         day
of                        ,        .


 


	
   

  	
  NEFF RENTAL, INC.  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


2





















 


Schedule 1


to Exhibit 4.1(d)


 


BORROWING
BASE CALCULATION


 


NEFF RENTAL, INC.


 


	
  Accounts of the Borrower reflected as
  accounts receivable on the Borrower’s balance sheet (as of the date above),
  but solely to the extent of the unpaid portion of the obligations stated on
  the respective invoices issued to a customer of Borrower with respect to
  inventory sold and shipped or services performed in the ordinary course of
  business, net of any credits, rebates or offsets owed by Borrower to the
  respective customer.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less:    Total
  Ineligible Accounts:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Ineligible Accounts

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Accounts (Accounts less
  Total Ineligible Accounts)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Advance Rate

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Accounts Availability

  	
   

  	
  $

  	
   

  



 


	
  Parts
  Inventory owned by, and in the possession of the Borrower, and located in the
  United States of America, reflected as parts inventory on the Borrower’s
  balance sheet (as of the date above), valued at the lower of cost or market
  (including adequate reserves for obsolete, slow moving or excess quantities),
  on a first-in, first-out basis

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less:    Total
  Ineligible Parts Inventory:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Ineligible Parts Inventory

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Parts Inventory (Parts Inventory less Total Ineligible
  Parts Inventory)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Advance Rate

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Parts Inventory Availability (but in no event greater than
  $5,000,000)

  	
   

  	
  $

  	
   

  



 





















 


	
  Rental Fleet and Equipment on the
  Borrower’s balance sheet (as of the date above), which is valued at the Net
  Book Value

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less:    Total
  Ineligible Rental Fleet and Equipment:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Ineligible Rental Fleet and Equipment

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Rental Fleet and Equipment
  (Rental Fleet and Equipment less Total Ineligible Rental Fleet and Equipment)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Advance Rate

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Rental Fleet and Equipment Availability
  (such amount the lesser of (i) the Rental Fleet and Equipment OLV Amount
  and (ii) 100% of the Net Book Value of Eligible Rental Fleet and
  Equipment)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Reserves

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Minimum Availability Block

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Borrowing Base (Accounts Availability PLUS
  Parts Inventory Availability PLUS Rental Fleet and Equipment Availability
  LESS Reserves LESS Minimum Availability Block)

  	
   

  	
   

  	
   

  



 


















EXHIBIT 4.1(l)


 


COMPLIANCE
AND PRICING CERTIFICATE


 


NEFF
RENTAL, INC.


 


Date:                  ,           


 


This Compliance and Pricing Certificate (this
“Certificate”) is given by NEFF Rental, Inc. (“Borrower”)
pursuant to Section 4.1(l) of that certain Amended and Restated
Credit Agreement, dated as of July 8, 2005, among NEFF Corp., as Holdings,
Borrower, the Lenders from time to time party thereto and General Electric
Capital Corporation, as agent for the Lenders and the other Secured Parties (as
such agreement may have been amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”).  Capitalized terms used herein without
definition shall have the meanings set forth in the Credit Agreement.


 


The undersigned is duly authorized to execute
and deliver this Certificate on behalf of Borrower.  By executing this Certificate such officer
hereby certifies to Agent and Lenders that:


 


(a)           the
financial statements delivered with this Certificate in accordance with Section 4.1(a) and/or
4.1(b) of the Credit Agreement fairly present in all material respects the
results of operations and financial condition of Holdings, Borrower and its
Subsidiaries as of the dates of such financial statements [(except that monthly Financial Statements do not
include footnote disclosures or any Consolidating statement and are subject to
year-end adjustment)];


 


(b)           I
have reviewed the terms of the Credit Agreement and have made, or caused to be
made under my supervision, a review in reasonable detail of the transactions
and conditions of the Credit Parties during the accounting period covered by
such financial statements;


 


(c)           such
review has not disclosed the existence during or at the end of such accounting
period, and I have no knowledge of the existence as of the date hereof, of any
condition or event that constitutes a Default or an Event of Default, except as
set forth on Schedule 1 hereto, which includes a description of the
nature and period of existence of such Default or an Event of Default and what
action Borrower has taken, is taking and proposes to take with respect thereto;


 


(d)           except
as set forth on Schedule 1 hereto, Borrower is in compliance with
the covenants contained in Sections 3.1, 3.3, 3.4, 3.5, 3.7, 3.8 and 3.17 of
the Credit Agreement, as demonstrated on Schedule 1 hereto;


 


(e)           based
upon the calculation of Leverage Ratio as set forth on Schedule 2
hereto, Applicable Margins shall be calculated using Level        [NOTE TO BORROWER: 
THIS CLAUSE IS ONLY REQUIRED TO BE COMPLETED AS OF THE END OF EACH
FISCAL QUARTER];


 


3





















 


(f)            except
as set forth on Schedule 3 hereto, subsequent to the date of the
most recent Certificate submitted by Borrower pursuant to Section 4.1(l)
of the Credit Agreement, no Credit Party has (i) changed its name as it
appears in official filings in the jurisdiction of its organization, (ii) changed
its chief executive office, principal place of business, corporate offices,
warehouses or locations at which Collateral is held or stored, or the location
of its records concerning Collateral, (iii) changed the type of entity
that it is, (iv) changed (or has had changed) its organization
identification number, if any, issued by its jurisdiction of organization, (v) changed
its jurisdiction of organization, (vi) changed the end of its Fiscal Year,
or (vii) formed any new Subsidiary or entered into any partnership or
joint venture with any other Person; and


 


(g)           except
as set forth on Schedule 4 hereto, subsequent to the date of the
most recent Certificate submitted by Borrower pursuant to Section 4.1(l)
of the Credit Agreement, there has been no event which would alter any of the
disclosures set forth on Schedule 5.4(b) of the Credit
Agreement.


 


IN WITNESS WHEREOF, Borrower has caused this
Certificate to be executed by its                                  this       day
of                        ,        .


 


	
   

  	
  NEFF RENTAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  



 





















 


SCHEDULE 1

Exhibit 4.1(l)


 


ALL AMOUNTS IN EXHIBIT 4.1(L) ARE WITHOUT DUPLICATION AND, UNLESS
OTHERWISE INDICATED, ARE CALCULATED FOR HOLDINGS AND ITS SUBSIDIARIES ON A
CONSOLIDATED BASIS.


 


INDEBTEDNESS

(Section 3.1)


 


	
  Intercompany Indebtedness of Borrower and its Subsidiaries to the
  extent permitted pursuant to Section 3.3(b) (Section 3.1(b)):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $100,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Indebtedness secured by purchase money Liens or incurred with respect
  to Capital Leases or synthetic leases (Section 3.1(e)):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $10,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Other unsecured Indebtedness not otherwise permitted in Sections 3.1(a) through
  (d):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $10,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Indebtedness in respect of any Permitted Subordinated Indebtedness,
  any Second Lien Financing or any combination thereof (Section 3.1(g)):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $50,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Indebtedness in respect of
  Permitted Earnout Obligations (Section 3.1(h)):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $100,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  



 





















 


INVESTMENTS

(Section 3.3)


 


	
  Intercompany loans, advances or capital contributions by any Credit
  Party to any Subsidiary of Holdings that is not a Subsidiary Guarantor (Section 3.3(b)):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $100,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Loans and advances to employees for moving, entertainment, traveling
  and other similar expenses in the ordinary course of business (Section 3.3(c)):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $1,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Loans made by Holdings to officers or employees of Holdings or any
  other Credit Party in connection with the purchase by such officers or
  employees of Stock of Holdings (Section 3.3(k)):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $1,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Investments in Permitted Acquisitions (Section 3.3(l)):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $100,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Other Investments not otherwise permitted in Sections 3.3(a) through
  (m):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $10,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  



 





















 


CONTINGENT
OBLIGATIONS 

(Section 3.4)


 


	
  Contingent Obligations not otherwise permitted in Sections 3.4(a) through
  (i):

  
	
   

  	
  Actual in the aggregate

  	
  $

  
	
   

  	
  Permitted in the aggregate

  	
  $3,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  



 





















 


RESTRICTED
PAYMENTS

(Section 3.5)


 


	
  Indemnification Payments paid (Section 3.5(d)):

  
	
   

  	
  Actual in the aggregate (Fiscal Year)

  	
  $

  
	
   

  	
  Permitted in the aggregate (Fiscal Year)

  	
  $500,000(1)

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Dividends paid to Holdings or Parent to permit repurchase of Stock of
  management (Section 3.5(f)):

  
	
   

  	
  Actual in the aggregate (current Fiscal Year)

  	
  $

  
	
   

  	
  Permitted in the aggregate (current Fiscal Year)

  	
  $2,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
  Actual in the aggregate (term of Credit Agreement)

  	
  $

  
	
   

  	
  Permitted in the aggregate (term of Credit Agreement)

  	
  $4,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Payments to Holdings or Parent to permit Holdings or Parent to pay
  general administrative costs and expenses when due in the ordinary course of
  business (Section 3.5(g)):

  
	
   

  	
  Actual in the aggregate (Fiscal Year)

  	
  $

  
	
   

  	
  Permitted in the aggregate (Fiscal Year)

  	
  $2,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  	
   

  
	
  Additional payments not otherwise permitted in Sections 3.5(a) through
  (g)

  
	
   

  	
  Actual in the aggregate (Fiscal Year)

  	
  $

  
	
   

  	
  Permitted in the aggregate (Fiscal Year)

  	
  $2,000,000

  
	
   

  	
  In Compliance

  	
  Yes/No

  



 










(1) Only applicable if an Event
of Default shall have occurred and be continuing or Borrowing Availability
shall be less than $10,000,000.


 





















 


ASSET
DISPOSITIONS 

(Section 3.7)


 


	
  Disposition of Rental Fleet and Equipment pursuant to sale and
  leaseback transactions (Section 3.7(c)):

  	 

	
  Actual in the aggregate

  	
  $

  	 

	
  Permitted in the aggregate

  	
  $15,000,000

  
	
  In Compliance

  	
  Yes/No

  
	
   

  	
   

  
	
  Describe any other Asset Dispositions made (list each transaction by
  market value of assets sold) (Section 3.7(e)):

  	 

	
   

  	
   

  	
  $

  	 

	
   

  	
   

  	
  $

  	 

	
   

  	
   

  	
  $

  	 

	
   

  	
   

  	
  $

  	 

	
  Aggregate market value of Asset Dispositions 

  	
  $

  	 

	
  Permitted Asset Dispositions in a single transaction or series of
  related transactions (asset market value)

  	
  

  $5,000,000

  	 

	
  In Compliance

  	
  Yes/No

  	 




 





















 


LEASE
LIMITS

(Section 3.17)


 


	
  All rents (or substantially equivalent
  payments) paid during the measuring period for operating leases, synthetic
  leases and similar off-balance sheet financing (Section 3.17):

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Permitted Lease Payments (Fiscal Year)

  	
   

  	
   

  
	
   

  	
   

  	
  $20,000,000

  
	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  



 





















 


PREPAYMENTS
OF OTHER INDEBTEDNESS

(Section 3.18)


 


	
  Prepayment of Indebtedness in respect of
  any Second Lien Financing or any Subordinated Indebtedness (Section 3.18(a)(iv)):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Actual in
  the aggregate

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Permitted in the aggregate

  	
   

  	
  $25,000,000

  
	
   

  	
   

  	
   

  
	
  In Compliance

  	
   

  	
  Yes/No

  



 





















 


CONDITIONS
OR EVENTS WHICH CONSTITUTE A DEFAULT OR

EVENT OF DEFAULT


 


[If any condition or event exists that constitutes a Default or Event
of Default, specify nature and period of existence and what action Borrower has
taken, is taking or proposes to take with respect thereto; if no condition or
event exists, state “None.”]


 





















 


SCHEDULE 2


 


CERTAIN
FINANCIAL DEFINITIONS AND CALCULATIONS 


	
  “Consolidated Net Income” means, for
  any period, for Holdings, Borrower and their Subsidiaries on a consolidated
  basis in accordance with GAAP:

  
	
   

  
	
  Net income during the measuring period:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  excluding:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  the income (or deficit) of any Person
  accrued prior to the date it became a Subsidiary of, or was merged or
  consolidated into, Holdings, Borrower or any of Borrower’s Subsidiaries 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  the income (or deficit) of any Person
  (other than a Subsidiary) in which Holdings or Borrower has an ownership
  interest, except to the extent any such income has actually been received by Holdings
  or Borrower or any of their Subsidiaries in the form of cash dividends or
  distributions

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  the undistributed earnings of any
  Subsidiary of Holdings to the extent that the declaration or payment of
  dividends or similar distributions by such Subsidiary is not at the time
  permitted by the terms of any contractual obligation or requirement of law
  applicable to such Subsidiary

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  any restoration to income of any
  contingency reserve, except to the extent that provision for such reserve was
  made out of income accrued during such period or any prior period

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  any net gain attributable to the write-up
  of any asset

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  any net gain from the collection of the
  proceeds of life insurance policies

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  any net gain arising from the acquisition
  of any securities, or the extinguishment of any Indebtedness, of Holdings,
  Borrower or any of their Subsidiaries

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  in the case of a successor to Holdings,
  Borrower or any of their Subsidiaries by consolidation or merger or as a
  transferee of its assets, any earnings of such successor prior to such
  consolidation, merger or transfer of assets

  	
   

  	
   

  	
   

  



 





















 


	
  any deferred credit representing the excess
  of equity in any Subsidiary of Holdings or Borrower at the date of
  acquisition of such Subsidiary over the cost to Holdings or Borrower of the
  investment in such Subsidiary

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Consolidated Net Income

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  
	
  “EBITDA” means, for any period, for
  Holdings and its Subsidiaries on a consolidated basis in accordance with
  GAAP:

  
	
   

  
	
  Consolidated Net Income

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less:       (in
  each case to the extent included in the calculation of Consolidated Net
  Income, but without duplication):

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  income tax credits

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  interest income

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  gain from extraordinary items (net of loss
  from extraordinary items)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  any aggregate net gain (but not any
  aggregate net loss) arising from the sale, exchange or other disposition of
  capital assets (including any fixed assets, whether tangible or intangible,
  all Inventory sold in conjunction with the disposition of fixed assets and
  all Stock and other securities) (excluding sales of Rental Fleet and
  Equipment in the ordinary course of business)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  any non-cash gains or other non-cash items
  which have been added to Consolidated Net Income, including any reversal of
  any non-cash charge or non-cash loss referred to below (including the
  reversal of any such charges or losses relating to the amount of (i) any
  compensation deduction as the result of any grant of Stock to employees,
  officers or directors and (ii) asset write-downs)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  any other non-cash gains

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  expenditures made in connection with
  Related Transactions and payment of liabilities on the Amendment and
  Restatement Date 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Plus:       (in
  each case to the extent deducted in the calculation of Consolidated Net
  Income, but without duplication):

  	
   

  	
   

  	
   

  
							



 





















 


	
  any provision for income taxes

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Interest Expense

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  depreciation and amortization

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  amortized debt discount

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  cash expenses incurred in connection with
  the consummation of Permitted Acquisitions, the issuance of Qualified Stock
  or the incurrence of Indebtedness of the type described in clauses (c),
  (d), (g) or (j) (in each case, whether or not the applicable
  Permitted Acquisition, issuance of Qualified Stock or incurrence of
  Indebtedness is consummated) 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  cash expenses paid consisting of fees and
  expenses incurred in connection with the registration of the Senior Secured
  Notes and/or Senior Subordinated Notes to the extent permitted pursuant to Section 3.5(c)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  non-cash charges and non-cash losses
  (including the amount of (i) any compensation deduction as the result of
  any grant of Stock to employees, officers, directors or members of management
  and (ii) asset write-downs)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  extraordinary, unusual or non-recurring,
  non-cash charges (including restructuring charges determined in accordance
  with GAAP) and reasonably acceptable to Agent

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  cash expenses of a business acquired in
  connection with a Permitted Acquisition that will be eliminated within six (6) months
  after the consummation of such acquisition which are either
  (i) permitted to be excluded by the Securities and Exchange Commission
  under Regulation S-X or (ii) otherwise reasonably satisfactory to Agent

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  management fees permitted to be paid
  pursuant to Section 3.8(b)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  expenses incurred in connection with the
  consummation of the Related Transactions to the extent such expenses were
  incurred within six (6) months of the Original Closing Date

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EBITDA

  	
   

  	
  $

  	
   

  



 


Notwithstanding anything to the contrary in the foregoing, upon the
consummation of a Permitted Acquisition, so long as Agent shall have received
for the Target or the business unit or assets acquired, as the case may be,
such financial statements and other financial information requested by Agent,
each in form and substance satisfactory to Agent and in form and content


 





















 


sufficient to enable Agent to make the calculation of EBITDA and Net
Income with reasonable certainty, EBITDA will be calculated on a pro forma
basis to give effect to such Permitted Acquisition as if such Permitted
Acquisition was completed on the first day of the applicable measurement
period; provided, that (a) income statement items attributable to
the Target acquired shall be included to the extent relating to any period
applicable in such calculations to the extent (i) such items are not
otherwise included in such income statement items for Holdings and its
Subsidiaries in accordance with GAAP or in accordance with any defined terms
set forth in this Schedule 2 and (ii) such items are supported by
financial statements or other information reasonably satisfactory to the Agent
and (b) any Indebtedness incurred or assumed by any Credit Party or any of
its Subsidiaries (including Target) in connection with such transaction and any
Indebtedness of Target which is not retired in connection with such transaction
(i) shall be deemed to have been incurred as of the first day of the
applicable measurement period and (ii) if such Indebtedness has a floating
or formula rate, shall have an implied rate of interest for the applicable
measurement period for purposes of this definition determined by utilizing the
rate which is or would be in effect with respect to such Indebtedness as at the
relevant date of determination.


 


LEVERAGE
RATIO FOR PURPOSES OF DETERMINING APPLICABLE MARGIN

(Section 4.2)


 


“Leverage Ratio” shall mean, for Holdings and its Subsidiaries
on a consolidated basis, as of the end of any Fiscal Quarter of Holdings for
the four (4) fiscal quarter period ending on such date, the ratio of
(a) Funded Debt of Holdings and its Subsidiaries, as of the last day of
such period to EBITDA for Holdings and its Subsidiaries for such period.


 


	
  Funded Debt

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EBITDA (calculated as provided above)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Leverage Ratio (Funded Debt divided  by
  EBITDA)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable Pricing Level (as described in
  the definition of Applicable Margins)

  	
   

  	
  Level     

  



 





















 


SCHEDULE 3

Exhibit 4.1(l)


 


ORGANIZATION/LOCATION
CHANGES


 


[If any Credit Party has (i) changed its name as it appears in
official filings in the state of its organization, (ii) changed its chief
executive office, principal place of business, corporate offices, warehouses or
locations at which Collateral is held or stored, or the location of its records
concerning Collateral, (iii) changed the type of entity that it is, (iv) changed
(or has had changed) its organization identification number, if any, issued by
its jurisdiction or organization, (v) changed its jurisdiction of
organization, (vi) changed the end of its Fiscal Year, or (vii) formed
any new Subsidiary or entered into any partnership or joint venture with any
Person, such change shall be specified below; if no such change has been made,
state “None.”]


 





















 


SCHEDULE 4

Exhibit 4.1(l)


 


CAPITALIZATION
CHANGES


 


[If with respect to any Credit Party there has been a change in
authorized Stock, issued and outstanding Stock or the identity of the holders
of any Stock, or if with respect to any Credit Party there has been a change
pertaining to preemptive rights or any other outstanding rights, options,
warrants, conversion rights or similar agreements or understandings for the
purchase or acquisition of any Stock, such change shall be set forth below; if
no such change has occurred, state “None.”]


 





















 


EXHIBIT 1.1(a)(i)

to

AMENDED AND RESTATED CREDIT AGREEMENT


 


FORM OF REVOLVING NOTE


 


New York, New York


 


$    ,    ,                            ,        


 


FOR VALUE RECEIVED, the undersigned NEFF
Rental, Inc. (“Borrower”), HEREBY PROMISES TO PAY to the order of                                               (“Lender”),
at the offices of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation,
as Agent for Lender and the other Secured Parties (“Agent”), at its
address at 401 Merritt Seven, 2nd Floor, Norwalk, Connecticut 06851 or at such
other place as Agent may designate from time to time in writing, in lawful
money of the United States of America and in immediately available funds, the
amount of                                               DOLLARS
AND                     CENTS
($      ,      ,     )
or, if less, the aggregate unpaid amount of all Revolving Credit Advances made
to the undersigned under the “Credit Agreement” (as hereinafter defined).  All capitalized terms used but not otherwise
defined herein have the meanings given to them in the Credit Agreement.


 


This Revolving Note is one of the Revolving
Notes issued pursuant to that certain Amended and Restated Credit Agreement
dated as of July 8, 2005 by and among NEFF RENTAL LLC, as Holdings,
Borrower, the other Persons named therein as Credit Parties, Agent, Lender and
the other Persons signatory thereto from time to time as Lenders (including all
annexes, exhibits and schedules thereto, and as from time to time amended,
restated, supplemented or otherwise modified, the “Credit Agreement”),
and is entitled to the benefit and security of the Credit Agreement, the
Security Agreement and all of the other Loan Documents referred to
therein.  Reference is hereby made to the
Credit Agreement for a statement of all of the terms and conditions under which
the Loans evidenced hereby are made and are to be repaid.  The date and amount of each Revolving Credit
Advance made by Lenders to Borrower, the rates of interest applicable thereto and
each payment made on account of the principal thereof, shall be recorded by
Agent on its books; provided that the failure of Agent to make any such
recordation shall not affect the obligations of Borrower to make a payment when
due of any amount owing under the Credit Agreement or this Revolving Note in
respect of the Revolving Credit Advances made by Lender to Borrower.


 


The principal amount of the indebtedness
evidenced hereby shall be payable in the amounts and on the dates specified in
the Credit Agreement, the terms of which are hereby incorporated herein by
reference.  Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement. The terms of the Credit Agreement are hereby incorporated herein by
reference.


 


If any payment on this Revolving Note becomes
due and payable on a day other than a Business Day, the payment thereof shall
be extended to the next succeeding Business Day and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension.


 





















 


Upon and after the occurrence of any Event of
Default, this Revolving Note may, as provided in the Credit Agreement, and
without presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other legal requirement of any kind (all of which are hereby
expressly waived by Borrower), be declared, and immediately shall become, due
and payable.


 


Time is of the essence of this Revolving Note.


 


Except as provided in the Credit Agreement,
this Revolving Note may not be assigned by Lender to any Person.


 


THIS REVOLVING NOTE
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.


 


	
   

  	
  NEFF RENTAL, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 





















 


EXHIBIT 1.1(a)(ii)

to

AMENDED AND RESTATED CREDIT AGREEMENT


 


FORM OF
NOTICE OF REVOLVING CREDIT ADVANCE


 


                       ,           


 


General Electric
Capital Corporation,

for itself, as Lender, and as Agent

for Lenders


401 Merritt
Seven, 2nd Floor


Norwalk,
Connecticut 06851


Attention:              NEFF Rental, Inc.

Account Manager


 


Ladies and Gentlemen:


 


The undersigned, NEFF Rental, Inc. (“Borrower”)
refers to the Amended and Restated Credit Agreement, dated as of July 8,
2005 (the “Credit Agreement,” the terms defined therein being used
herein as therein defined), by and among the Borrower, the other Credit Parties
signatory thereto, General Electric Capital Corporation, for itself, as Lender,
and as Agent for the Secured Parties, and Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 1.1(a) of the Credit
Agreement, that the undersigned hereby requests a Revolving Credit Advance
under the Credit Agreement, and in that connection sets forth below the
information relating to such Revolving Credit Advance as required by Section 1.1(a) of
the Credit Agreement:


 


(i)            The
date of the requested Revolving Credit Advance is                        ,         .


 


(ii)           The
aggregate amount of the requested Revolving Credit Advance is $                     .


 


(iii)          The
requested Revolving Credit Advance is [an
Index Rate Loan] [a LIBOR Loan with a LIBOR Period of                    ].


 


(iv)          The
requested Revolving Credit Advance is to be sent to:


 


[Name of Bank]

[City of Bank]

Beneficiary:

Account No.:  [number]

ABA No.:  [number]

Attn:  [name]


 





















 


The undersigned hereby certifies that all of
the statements contained in Section 7.2 of the Credit Agreement are
true and correct in all material respects on the date hereof, and will be true
in all material respects on the date of the requested Revolving Credit Advance,
before and after giving effect thereto and to the application of the proceeds
therefrom.


 


 


	
   

  	
  NEFF RENTAL, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 





















 


EXHIBIT 1.1(b)

to

AMENDED AND RESTATED CREDIT AGREEMENT


 


FORM OF SWING LINE NOTE


 


Chicago, Illinois

$    ,    ,                              ,          


 


FOR VALUE RECEIVED, the undersigned,. NEFF
Rental, Inc. (“Borrower”) HEREBY PROMISES TO PAY to the order of
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“Swing Line
Lender”) at the offices of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, as Agent (in such capacity, the “Agent”) at the Agent’s
address at 401 Merritt Seven, 2nd Floor, Norwalk, Connecticut 06851 or at such
other place as Agent may designate from time to time in writing, in lawful
money of the United States of America and in immediately available funds, the
amount of                                              DOLLARS
AND NO CENTS ($    ,    ,    )
or, if less, the aggregate unpaid amount of all Swing Line Advances made to the
undersigned under the “Credit Agreement” (as hereinafter defined).  All capitalized terms used but not otherwise
defined herein have the meanings given to them in the Credit Agreement or.


 


This Swing Line Note is issued pursuant to
that certain Amended and Restated Credit Agreement dated as of July 8,
2005 by and among NEFF RENTAL LLC, as Holdings, Borrower, the other Persons
named therein as Credit Parties, Agent, Swing Line Lender and the other Persons
signatory thereto from time to time as Lenders (including all annexes, exhibits
and schedules thereto and as from time to time amended, restated, supplemented
or otherwise modified, the “Credit Agreement”), and is entitled to the
benefit and security of the Credit Agreement, the Security Agreement and all of
the other Loan Documents.  Reference is
hereby made to the Credit Agreement for a statement of all of the terms and
conditions under which the Loans evidenced hereby are made and are to be
repaid.  The date and amount of each
Swing Line Advance made by Swing Line Lender to Borrower, the rate of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided, that the failure of
Agent to make any such recordation shall not affect the obligations of Borrower
to make a payment when due of any amount owing  under the Credit Agreement or this Swing Line
Note in respect of the Swing Line Advances made by Swing Line Lender to
Borrower.


 


The principal amount of the indebtedness
evidenced hereby shall be payable on demand in accordance with the Credit
Agreement, the terms of which are hereby incorporated herein by reference.  Interest thereon shall be paid until such
principal amount is paid in full at such interest rates and at such times, and
pursuant to such calculations, as are specified in the Credit Agreement.  The terms of the Credit Agreement are hereby
incorporated herein by reference.


 


If any payment on this Swing Line Note
becomes due and payable on a day other than a Business Day, the payment thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension.


 





















 


Upon and after the occurrence of any Event of
Default, this Swing Line Note may, as provided in the Credit Agreement, and without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other legal requirement of any kind (all of which are hereby
expressly waived by Borrower), be declared, and immediately shall become, due
and payable.


 


Time is of the essence of this Swing Line
Note.


 


Except as provided in the Credit Agreement,
this Swing Line Note may not be assigned by Lender to any Person.


 


THIS SWING LINE NOTE
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.


 


 


	
   

  	
  NEFF RENTAL, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 





















 


EXHIBIT 1.2(e)

to

AMENDED AND RESTATED CREDIT AGREEMENT


 


FORM OF NOTICE OF
CONVERSION/CONTINUATION


 


Reference is made to that certain Amended and
Restated Credit Agreement dated as of July 8, 2005 by and among the
undersigned Neff Rental, Inc. (“Borrower”), Neff Rental LLC, as
Holdings, and each of the other Persons named therein as Credit Parties,
General Electric Capital Corporation, as Agent for the Secured Parties (in such
capacity, “Agent”) and the Lenders from time to time signatory thereto
(including all annexes, exhibits or schedules thereto, and as from time to time
amended, restated, supplemented or otherwise modified, the “Credit Agreement”).  Capitalized terms used herein without
definition are so used as defined in the Credit Agreement.


 


Borrower hereby gives irrevocable notice,
pursuant to Section 1.2(e) of the Credit Agreement, of its
request to:


 


(a)           on
date convert $[               ]of
the aggregate outstanding principal amount of the [               ]
Loan, bearing interest at the [               ]
Rate, into a(n) [               ]
Loan [and, in the case of a LIBOR Loan, having a LIBOR Period of [1 month]
[[2][3][6] months];


 


[(b)          on
date continue $[               ]of
the aggregate outstanding principal amount of the [               ]
Loan, bearing interest at the LIBOR Rate, as a LIBOR Loan having a LIBOR Period
of [1 month] [[2][3][6] months].


 


Borrower certifies that the conversion and/or
continuation of the Loans requested above is for the separate account of
Borrower in the following amount:  $                            .


 


Borrower hereby certifies that all of the
statements contained in Section 7.2 of the Credit Agreement are
true and correct in all material respects on the date hereof, and will be true
in all material respects on the date of the requested conversion/continuation,
before and after giving effect thereto.


 


	
   

  	
  NEFF RENTAL, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 





















 


EXHIBIT 8.1

to

AMENDED AND RESTATED CREDIT AGREEMENT


 


ASSIGNMENT AGREEMENT


 


This Assignment Agreement (this “Agreement”)
is made as of                                ,      by
and between                                                                 (“Assignor
Lender”) and                                                       (“Assignee
Lender”) and acknowledged and consented to by GENERAL ELECTRIC CAPITAL
CORPORATION, as agent (in such capacity, “Agent”).  All capitalized terms used in this Agreement
and not otherwise defined herein shall have the respective meanings set forth
in the Credit Agreement as hereinafter defined.


 


RECITALS:


 


WHEREAS, Neff Rental, Inc., a Florida
corporation (“Borrower”) and Neff Rental LLC, a Delaware corporation (“Holdings”),
Agent, Assignor Lender and other Persons signatory thereto as Lenders have
entered into that certain Amended and Restated Credit Agreement dated as of July 8,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”) pursuant to which Assignor Lender has
agreed to make certain Loans to, and incur certain Letter of Credit Obligations
for, Borrower;


 


WHEREAS, Assignor Lender desires to assign to
Assignee Lender [all/a portion] of
its interest in the Loans (as described below), the Letter of Credit
Obligations and the Collateral and to delegate to Assignee Lender [all/a portion] of its Revolving Loan
Commitments and other duties with respect to such Loans, Letter of Credit
Obligations and Collateral;


 


WHEREAS, Assignee Lender desires to become a
Lender under the Credit Agreement and to accept such assignment and delegation
from Assignor Lender; and


 


WHEREAS, Assignee Lender desires to appoint
Agent to serve as agent for Assignee Lender under the Credit Agreement.


 


NOW, THEREFORE, in consideration of the
premises and the agreements, provisions, and covenants herein contained,
Assignor Lender and Assignee Lender agree as follows:


 


1.             ASSIGNMENT,
DELEGATION, AND ACCEPTANCE


 


1.1           Assignment.  Assignor Lender hereby transfers and assigns
to Assignee Lender, without recourse and without representations or warranties
of any kind (except as set forth in Section 3.2), [all/such percentage] of Assignor Lender’s
right, title, and interest in [the Revolving
Loan ], [Letter of Credit Obligations], Loan Documents and the
Collateral as will result in Assignee Lender having as of the Effective Date
(as hereinafter defined) a Pro Rata Share thereof, as follows:


 





















 


	
  Assignee Lender’s Loans

  	
   

  	
  Principal Amount

  	
   

  	
  Pro Rata Share

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Revolving
  Loan

  	
   

  	
  $

  	
   

  	
   

  	
  %

  



 


1.2           Delegation.  Assignor Lender hereby irrevocably assigns
and delegates to Assignee Lender [all/a
portion] of its Revolving Loan Commitments and its other duties and
obligations as a Lender under the Loan Documents equivalent to the Pro Rata Shares set forth above.


 


1.3           Acceptance
by Assignee Lender.  By its execution
of this Agreement, Assignee Lender irrevocably purchases, assumes and accepts
such assignment and delegation and agrees to be a Lender with respect to the
delegated interest under the Loan Documents and to be bound by the terms and
conditions thereof.  By its execution of
this Agreement, Assignor Lender agrees, to the extent provided herein, to
relinquish its rights and be released from its obligations and duties under the
Credit Agreement.


 


1.4           Effective
Date.  Such assignment and delegation
by Assignor Lender and acceptance by Assignee Lender will be effective and
Assignee Lender will become a Lender under the Loan Documents as of [the date of this Agreement][                   ,        ]
(“Effective Date”) and upon payment of the Assigned Amount and the
Assignment Fee (as each term is defined below). 
[Interest and Fees accrued prior to
the Effective Date are for the account of Assignor Lender, and Interest and
Fees accrued from and after the Effective Date are for the account of Assignee
Lender.]


 


2.             INITIAL PAYMENT AND
DELIVERY OF NOTES


 


2.1           Payment
of the Assigned Amount.  Assignee
Lender will pay to Assignor Lender, in immediately available funds, not later
than 12:00 noon (New York time on
the Effective Date, an amount equal to its Pro Rata Share of the then
outstanding principal amount of the Loans as set forth above in Section 1.1
[together with accrued interest, fees and
other amounts as set forth on Schedule 2.1] (the “Assigned
Amount”).


 


2.2           Payment
of Assignment Fee.  [Assignor Lender
and/or Assignee Lender] will pay to Agent, for its own account in immediately
available funds, not later than 12:00
noon (New York time on the Effective Date, the assignment fee in the amount of
$3,500 (the “Assignment Fee”) as required pursuant to Section 8.1(a) of
the Credit Agreement.


 


2.3           Execution
and Delivery of Notes.  Following
payment of the Assigned Amount and the Assignment Fee, Assignor Lender will
deliver to Agent the Notes previously delivered to Assignor Lender for
redelivery to Borrower and Agent will obtain from Borrower for delivery to [Assignor Lender and] Assignee Lender, new
executed Notes evidencing Assignee Lender’s [and
Assignor Lender’s respective] Pro Rata Share[s] in the Loans after
giving effect to the assignment described in Section 1.  Each new Note will be issued in the aggregate
maximum principal amount of the [applicable]
Commitment [of the Lender to whom such Note
is issued]  OR
[the Assignee Lender].


 





















 


3.             REPRESENTATIONS,
WARRANTIES AND COVENANTS


 


3.1           Assignee
Lender’s Representations, Warranties and Covenants.  Assignee Lender hereby represents, warrants,
and covenants the following to Assignor Lender and Agent:


 


(a)           This
Agreement is a legal, valid, and binding agreement of Assignee Lender,
enforceable according to its terms;


 


(b)           The
execution and performance by Assignee Lender of its duties and obligations
under this Agreement and the Loan Documents will not require any registration
with, notice to, or consent or approval by any Governmental Authority;


 


(c)           Assignee
Lender is familiar with transactions of the kind and scope reflected in the
Loan Documents and in this Agreement;


 


(d)           Assignee
Lender has made its own independent investigation and appraisal of the
financial condition and affairs of each Credit Party, has conducted its own
evaluation of the Loans and Letter of Credit Obligations, the Loan Documents
and each Credit Party’s creditworthiness, has made its decision to become a
Lender to Borrower under the Credit Agreement independently and without
reliance upon Assignor Lender or Agent, and will continue to do so;


 


(e)           Assignee
Lender is entering into this Agreement in the ordinary course of its business,
and is acquiring its interest in the Loans and Letter of Credit Obligations for
its own account and not with a view to or for sale in connection with any
subsequent distribution; provided, however, that at all times the
distribution of Assignee Lender’s property shall, subject to the terms of the
Credit Agreement, be and remain within its control;


 


(f)            No
future assignment or participation granted by Assignee Lender pursuant to Section 8.1
of the Credit Agreement will require Assignor Lender, Agent, or Borrower to
file any registration statement with the Securities and Exchange Commission or
to apply to qualify under the blue sky laws of any state;


 


(g)           Assignee
Lender has no loans to, written or oral agreements with, or equity or other
ownership interest in any Credit Party;


 


(h)           Assignee
Lender will not enter into any written or oral agreement with, or acquire any
equity or other ownership interest in, any Credit Party without the prior
written consent of Agent; and


 


(i)            As
of the Effective Date, Assignee Lender (i) is entitled to receive payments
of principal and interest in respect of the Obligations without deduction for
or on account of any taxes imposed by the United States of America or any
political subdivision thereof, (ii) is not subject to capital adequacy or
similar requirements under Section 1.11(a) of the Credit
Agreement, (iii) does not require the payment of any increased costs under
Section 1.11(b) of the Credit Agreement, and (iv) is not
unable to fund LIBOR Loans under Section 1.11(b) of the Credit
Agreement, and Assignee Lender will indemnify Agent from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, or


 





















 


expenses that result from
Assignee Lender’s failure to fulfill its obligations under the terms of Section 1.11(c) of
the Credit Agreement.


 


3.2           Assignor
Lender’s Representations, Warranties and Covenants.  Assignor Lender hereby represents, warrants
and covenants the following to Assignee Lender:


 


(a)           Assignor
Lender is the legal and beneficial owner of the Assigned Amount;


 


(b)           This
Agreement is a legal, valid and binding agreement of Assignor Lender,
enforceable according to its terms;


 


(c)           The
execution and performance by Assignor Lender of its duties and obligations
under this Agreement and the Loan Documents will not require any registration
with, notice to or consent or approval by any Governmental Authority;


 


(d)           Assignor
Lender has full power and authority, and has taken all action necessary to
execute and deliver this Agreement and to fulfill the obligations hereunder and
to consummate the transactions contemplated hereby;


 


(e)           Assignor
Lender is the legal and beneficial owner of the interests being assigned
hereby, free and clear of any adverse claim, Lien, encumbrance, security interest,
restriction on transfer, purchase option, call or similar right of a third
party; and


 


(f)            This
Assignment by Assignor Lender to Assignee Lender complies, in all material
respects, with the terms of the Loan Documents.


 


4.             LIMITATIONS OF
LIABILITY


 


Neither Assignor Lender (except as provided
in Section 3.2) nor Agent makes any representations or warranties
of any kind, nor assumes any responsibility or liability whatsoever, with
regard to (a) the Loan Documents or any other document or instrument furnished
pursuant thereto or the Loans, Letter of Credit Obligations or other
Obligations, (b) the creation, validity, genuineness, enforceability,
sufficiency, value or collectibility of any of them, (c) the amount, value
or existence of the Collateral,  (d) the
perfection or priority of any Lien upon the Collateral, or (e) the
financial condition of any Credit Party or other obligor or the performance or
observance by any Credit Party of its obligations under any of the Loan
Documents or any Related Swap Contract. 
Neither Assignor Lender nor Agent has or will have any duty, either
initially or on a continuing basis, to make any investigation, evaluation,
appraisal of, or any responsibility or liability with respect to the accuracy
or completeness of, any information provided to Assignee Lender which has been
provided to Assignor Lender or Agent by any Credit Party.  Nothing in this Agreement or in the Loan
Documents shall impose upon the Assignor Lender or Agent any fiduciary
relationship in respect of the Assignee Lender.


 


5.             FAILURE TO ENFORCE


 


No failure or delay on the part of Agent or
Assignor Lender in the exercise of any power, right, or privilege hereunder or
under any Loan Document will impair such power, right, or privilege or be
construed to be a waiver of any default or acquiescence therein.  No single or partial exercise of any such
power, right,


 





















 


or privilege will preclude
further exercise thereof or of any other right, power, or privilege.  All rights and remedies existing under this
Agreement are cumulative with, and not exclusive of, any rights or remedies
otherwise available.


 


6.             NOTICES


 


Unless otherwise specifically provided
herein, any notice or other communication required or permitted to be given
will be in writing and addressed to the respective party as set forth below its
signature hereunder, or to such other address as the party may designate in
writing to the other.


 


7.             AMENDMENTS AND
WAIVERS


 


No amendment, modification, termination, or
waiver of any provision of this Agreement will be effective without the written
concurrence of Assignor Lender, Agent and Assignee Lender.


 


8.             SEVERABILITY


 


Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law.  In the event any
provision of this Agreement is or is held to be invalid, illegal, or
unenforceable under applicable law, such provision will be ineffective only to
the extent of such invalidity, illegality, or unenforceability, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.  In addition, in the
event any provision of or obligation under this Agreement is or is held to be
invalid, illegal, or unenforceable in any jurisdiction, the validity, legality,
and enforceability of the remaining provisions or obligations in any other
jurisdictions will not in any way be affected or impaired thereby.


 


9.             SECTION TITLES


 


Section and Subsection titles in
this Agreement are included for convenience of reference only, do not constitute
a part of this Agreement for any other purpose, and have no substantive effect.


 


10.           SUCCESSORS AND ASSIGNS


 


This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.


 


11.           APPLICABLE LAW


 


THIS AGREEMENT WILL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE.


 





















 


12.           COUNTERPARTS


 


This Agreement and any amendments, waivers,
consents, or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so
executed and delivered, will be deemed an original and all of which shall
together constitute one and the same instrument.


 


[Signature
page follows]


 





















 


IN WITNESS WHEREOF, this Agreement has been
duly executed as of the date first written above.


 


	
  ASSIGNEE LENDER:

  	
   

  	
  ASSIGNOR LENDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  Notice Address:

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


 


ACKNOWLEDGED AND CONSENTED TO:


 


GENERAL ELECTRIC CAPITAL


CORPORATION, as Agent


 


 


	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


 


ADD WHEN NO EVENT OF DEFAULT HAS


OCCURRED AND IS CONTINUING TO THE EXTENT


BORROWER CONSENT IS REQUIRED:


 


[NEFF RENTAL, INC., as Borrower


 


 


	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 





















 


SCHEDULE 2.1


 


Assignor Lender’s Loans


 


Principal Amount


 


	
  Revolving Loan

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Accrued Interest

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Unused Line Fee

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Other + or -$

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
   

  



 


All determined as of the Effective Date.


 





















 


EXHIBIT A


 


TO


 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


FORM OF
JOINDER AGREEMENT


 


JOINDER AGREEMENT (this “Agreement”)
dated as of                       ,
20     is by and among                        ,
a                      [corporation][limited
liability company] (the “New Subsidiary”) and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation in its capacity as Agent for the Lenders
and the other Secured Parties (each as defined in the Credit Agreement referred
to below).


 


Pursuant to the Amended and Restated Credit
Agreement, dated as of July 8, 2005 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”;
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement), among Neff, a
Delaware limited liability company (“Holdings”), NEFF Rental, Inc.,
a Florida corporation ( “Borrower”), the other Credit Parties party
thereto, Agent and Lenders, the Credit Parties are required by Section 2.8
of the Credit Agreement to cause the New Subsidiary to become a Credit Party
thereunder.  Accordingly, the New
Subsidiary hereby agrees as follows with the Agent, for the benefit of the
Lenders and the other Secured Parties, that:


 


1.             The
New Subsidiary hereby acknowledges, agrees and confirms that, by its execution
of this Agreement, the New Subsidiary will be deemed to be a party to the
Credit Agreement for all purposes of the Credit Agreement and the other Loan
Documents, and shall have all of the obligations of a Credit Party thereunder
as if it had executed the Credit Agreement. 
The New Subsidiary hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions applicable to the
Credit Parties in the Credit Agreement and the other Loan Documents.


 


2.             The
New Subsidiary hereby acknowledges, agrees and confirms that, by its execution
of this Agreement, the New Subsidiary will be deemed to be a party to the
Security Agreement and a Grantor (as defined in the Security Agreement) for all
purposes of the Security Agreement and the other Loan Documents and Related
Swap Contracts, and shall have all the obligations of a Grantor thereunder as
if it had executed the Security Agreement. 
The New Subsidiary hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the
Security Agreement.  Without limiting
generality of the foregoing terms of this paragraph 2, the New Subsidiary
hereby grants, assigns, conveys, mortgages, pledges, hypothecates and transfers
to Agent, for itself and the benefit of the Secured Parties, a Lien upon all of
its right, title and interest in, to and under all of the Collateral (as
defined in the Security Agreement) of such New Subsidiary, whether owned or
consigned by or to, or leased from or to, such New Subsidiary, and regardless
of where located, to secure the prompt payment and performance in full when
due, whether by lapse of time, acceleration, mandatory prepayment or otherwise,
of the Obligations.


 





















 


3.             The
New Subsidiary hereby acknowledges, agrees and confirms that, by its execution
of this Agreement, the New Subsidiary will be deemed to be a party to the
Pledge Agreement and a Pledgor (as defined in the Pledge Agreement) for all
purposes of the Pledge Agreement, the other Loan Documents and the Related Swap
Contracts, and shall have all the obligations of a Pledgor thereunder as if it
had executed the Pledge Agreement.  The
New Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound
by, all of the terms, provisions and conditions contained in the Pledge
Agreement.  Without limiting generality
of the foregoing terms of this paragraph 3, the New Subsidiary hereby grants
and pledges to Agent, for itself and the benefit of the Secured Parties, a
first priority security interest in the Pledged Collateral (as defined in the
Pledge Agreement) of the New Subsidiary identified on Schedule 1
hereto and all other Pledged Collateral of the New Subsidiary to secure the
prompt payment and performance in full when due, whether by lapse of time,
acceleration, mandatory prepayment or otherwise, of the Obligations.


 


4.             The
Subsidiary hereby represents and warrants to the Agent that:


 


(a)           The
New Subsidiary’s official name, type of entity and state of organization or
incorporation are as set forth on the signature pages hereto.


 


(b)           The
New Subsidiary’s chief executive office and principal place of business and
other offices are located at the locations set forth on Schedule 2
hereto.


 


(c)           Other
than as set forth on Schedule 3 hereto, the New Subsidiary has not
changed its official name or changed its state of organization or
incorporation, been party to a merger, consolidation or other change in
structure or used any tradename in the prior five years.


 


(d)           Schedule 4
hereto includes all warehouses, consignees and processors with whom Inventory
is stored or located and other premises where Collateral is stored or located.


 


(e)           Schedule 5
hereto includes all the locations of the New Subsidiary’s books and records
concerning the Collateral.


 


(f)            Schedule 6
hereto includes a list of Persons from whom the New Subsidiary has acquired
assets during the past five (5) years, other than assets acquired in the
ordinary course of the New Subsidiary’s business.


 


(g)           Schedule 7
hereto includes all Patents, Trademarks and Copyrights owned by or licensed to
the New Subsidiary in its own name, or to which the New Subsidiary is a party,
as of the date hereof, that is used in or necessary for the conduct of its
business as currently conducted that is material to the condition (financial or
otherwise).


 


(h)           Schedule 8
hereto includes all Commercial Tort Claims before any Governmental Authority by
or in favor of the New Subsidiary.


 





















 


(i)            Schedule 9
hereto lists all Real Estate that is owned, leased or subleased by the New
Subsidiary as of the date hereof.  Schedule 9
hereto further lists any Real Estate with respect to which the New Subsidiary
or any of its Subsidiaries is a lessor, sublessor or assignor as of the date
hereof.


 


(h)           Schedule 10
hereto lists all locations of tangible personal property that is owned or
leased by the New Subsidiary as of the date.


 


5.             This
Agreement may be executed in any number of counterparts and by different
parties in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.  Signature pages may
be detached from multiple separate counterparts and attached to a single counterpart
so that all signature pages are attached to the same document.  Delivery of an executed signature page of
this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof.


 


6.             THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPALS.


 





















 


IN WITNESS WHEREOF, each of the undersigned
has caused this Joinder Agreement to be duly executed and delivered as of the
date first above written.


 


	
   

  	
  [NEW SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Acknowledged and accepted as of the date

  	
   

  
	
  first written above:

  	
   

  
	
   

  	
   

  
	
  GENERAL ELECTRIC CAPITAL CORPORATION,

  	
   

  
	
  as Agent for the benefit of itself and the
  other Secured Parties

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
						



 





















 


EXHIBIT B


 


TO


 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


FORM OF
INTERCREDITOR AGREEMENT


 


See Attached.