Exhibit 10.5

 

EXECUTION VERSION

 

	
 
    


 

SECOND LIEN CREDIT AGREEMENT

 

dated as of

 

June 9, 2014

 

among

 

NEFF HOLDINGS LLC,

as Holdings,

 

NEFF LLC,

as Parent,

 

NEFF RENTAL LLC,

as Borrower,

 

THE LENDERS PARTY HERETO,

 

and

 

CREDIT SUISSE AG,

as Administrative Agent and Collateral Agent,

 

and

 

CREDIT SUISSE SECURITIES (USA) LLC and JEFFERIES FINANCE LLC,

as Joint Bookrunners and Joint Lead Arrangers,

 

and

 

JEFFERIES FINANCE LLC,

as Syndication Agent

 

	
 
    


 











 

	
ARTICLE 1
    
	
 
    
	
DEFINITIONS
    
	
 
    	
 
    	
 
    
	
Section 1.01.
    	
Defined   Terms
    	
2
    
	
Section 1.02.
    	
Terms   Generally
    	
39
    
	
Section 1.03.
    	
Pro   Forma Calculations
    	
39
    
	
Section 1.04.
    	
Classification   of Loans and Borrowings
    	
39
    
	
 
    	
 
    	
 
    
	
ARTICLE 2
    
	
 
    
	
THE CREDITS
    
	
 
    	
 
    	
 
    
	
Section 2.01.
    	
Commitments
    	
40
    
	
Section 2.02.
    	
Loans
    	
40
    
	
Section 2.03.
    	
Borrowing   Procedure
    	
41
    
	
Section 2.04.
    	
Evidence   of Debt; Repayment of Loans
    	
42
    
	
Section 2.05.
    	
Fees
    	
42
    
	
Section 2.06.
    	
Interest   on Loans
    	
42
    
	
Section 2.07.
    	
Default   Interest
    	
43
    
	
Section 2.08.
    	
Alternate   Rate of Interest
    	
43
    
	
Section 2.09.
    	
Termination   and Reduction of Commitments
    	
43
    
	
Section 2.10.
    	
Conversion   and Continuation of Borrowings
    	
44
    
	
Section 2.11.
    	
Repayment   of Borrowings
    	
45
    
	
Section 2.12.
    	
Voluntary   Prepayment
    	
45
    
	
Section 2.13.
    	
Mandatory   Prepayments
    	
46
    
	
Section 2.14.
    	
Reserve   Requirements; Change in Circumstances
    	
47
    
	
Section 2.15.
    	
Change   in Legality
    	
48
    
	
Section 2.16.
    	
Breakage
    	
49
    
	
Section 2.17.
    	
Pro   Rata Treatment
    	
50
    
	
Section 2.18.
    	
Sharing   of Setoffs
    	
50
    
	
Section 2.19.
    	
Payments
    	
51
    
	
Section 2.20.
    	
Taxes
    	
51
    
	
Section 2.21.
    	
Assignment   of Commitments Under Certain Circumstances; Duty
    	
 
    
	
 
    	
to   Mitigate
    	
55
    
	
Section 2.22.
    	
Extension   of Loans
    	
57
    
	
Section 2.23.
    	
Defaulting   Lenders
    	
59
    
	
Section 2.24.
    	
Incremental   Facilities
    	
60
    
	
 
    	
 
    	
 
    
	
ARTICLE 3
    
	
 
    
	
REPRESENTATIONS AND   WARRANTIES
    
	
 
    
	
Section 3.01.
    	
Organization;   Powers
    	
62
    
	
Section 3.02.
    	
Authorization
    	
62
    
	
Section 3.03.
    	
Enforceability
    	
63
    
	
Section 3.04.
    	
Approvals
    	
63
    


 

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Section 3.05.
    	
Financial   Statements
    	
63
    
	
Section 3.06.
    	
No   Material Adverse Change
    	
63
    
	
Section 3.07.
    	
Title   to Properties; Possession Under Leases
    	
63
    
	
Section 3.08.
    	
Subsidiaries
    	
63
    
	
Section 3.09.
    	
Litigation;   Compliance with Laws
    	
64
    
	
Section 3.10.
    	
Agreements
    	
64
    
	
Section 3.11.
    	
Federal   Reserve Regulations
    	
64
    
	
Section 3.12.
    	
Not   a Regulated Entity
    	
64
    
	
Section 3.13.
    	
Use   of Proceeds
    	
65
    
	
Section 3.14.
    	
Tax   Returns
    	
65
    
	
Section 3.15.
    	
No   Material Misstatements
    	
65
    
	
Section 3.16.
    	
Employee   Benefit Plans
    	
65
    
	
Section 3.17.
    	
Environmental   Matters
    	
66
    
	
Section 3.18.
    	
Insurance
    	
67
    
	
Section 3.19.
    	
Security   Documents
    	
67
    
	
Section 3.20.
    	
Location   of Real Property and Leased Premises
    	
68
    
	
Section 3.21.
    	
Labor   Matters
    	
68
    
	
Section 3.22.
    	
Solvency
    	
68
    
	
Section 3.23.
    	
No   Defaults
    	
68
    
	
Section 3.24.
    	
[Reserved]
    	
68
    
	
Section 3.25.
    	
Intellectual   Property
    	
68
    
	
Section 3.26.
    	
Anti-Terrorism   Law; Foreign Corrupt Practices Act
    	
69
    
	
 
    	
 
    	
 
    
	
ARTICLE 4
    
	
 
    
	
CONDITIONS OF LENDING
    
	
 
    	
 
    	
 
    
	
Section 4.01.
    	
Conditions   to Closing
    	
69
    
	
Section 4.02.
    	
Conditions   to Closing of Each Incremental Facility
    	
72
    
	
 
    	
 
    	
 
    
	
ARTICLE 5
    
	
 
    
	
AFFIRMATIVE COVENANTS
    
	
 
    	
 
    	
 
    
	
Section 5.01.
    	
Existence;   Compliance with Laws; Businesses and Properties
    	
72
    
	
Section 5.02.
    	
Insurance
    	
73
    
	
Section 5.03.
    	
Taxes
    	
73
    
	
Section 5.04.
    	
Financial   Statements, Reports, etc.
    	
74
    
	
Section 5.05.
    	
Litigation   and Other Notices
    	
76
    
	
Section 5.06.
    	
Information   Regarding Collateral
    	
77
    
	
Section 5.07.
    	
Maintaining   Records; Access to Properties and Inspections;
    	
 
    
	
 
    	
Maintenance   of Ratings
    	
78
    
	
Section 5.08.
    	
Use   of Proceeds
    	
78
    
	
Section 5.09.
    	
Additional   Guarantors
    	
78
    
	
Section 5.10.
    	
Additional   Collateral; Further Assurances
    	
79
    
	
Section 5.11.
    	
Designation   of Unrestricted Subsidiaries
    	
80
    
	
Section 5.12.
    	
Post-Closing   Matters
    	
81
    


 

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ARTICLE 6
    
	
 
    
	
NEGATIVE COVENANTS
    
	
 
    	
 
    	
 
    
	
Section 6.01.
    	
Indebtedness
    	
82
    
	
Section 6.02.
    	
Liens
    	
85
    
	
Section 6.03.
    	
Sale   and Leaseback Transactions
    	
87
    
	
Section 6.04.
    	
Restricted   Payments; Restrictive Agreements
    	
87
    
	
Section 6.05.
    	
Investments,   Loans and Advances
    	
89
    
	
Section 6.06.
    	
Disposition   of Assets
    	
90
    
	
Section 6.07.
    	
[Reserved]
    	
91
    
	
Section 6.08.
    	
Restrictions   on Payment of Certain Indebtedness
    	
91
    
	
Section 6.09.
    	
Fundamental   Changes
    	
91
    
	
Section 6.10.
    	
[Reserved]
    	
92
    
	
Section 6.11.
    	
Amendments   to Other Indebtedness and Agreements
    	
92
    
	
Section 6.12.
    	
[Reserved]
    	
92
    
	
Section 6.13.
    	
Accounting   Changes
    	
92
    
	
Section 6.14.
    	
Hedging   Agreements
    	
92
    
	
Section 6.15.
    	
Conduct   of Business
    	
92
    
	
Section 6.16.
    	
Affiliate   Transactions
    	
93
    
	
Section 6.17.
    	
Plans
    	
93
    
	
Section 6.18.
    	
[Reserved]
    	
93
    
	
Section 6.19.
    	
Limited   Activities
    	
93
    
	
 
    	
 
    	
 
    
	
ARTICLE 7
    
	
 
    
	
EVENTS OF DEFAULT
    
	
 
    	
 
    	
 
    
	
Section 7.01.
    	
Events   of Default
    	
93
    
	
 
    	
 
    	
 
    
	
ARTICLE 8
    
	
 
    
	
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT; ETC.
    
	
 
    
	
ARTICLE 9
    
	
 
    
	
MISCELLANEOUS
    
	
 
    
	
Section 9.01.
    	
Notices;   Electronic Communications
    	
100
    
	
Section 9.02.
    	
Survival   of Agreement
    	
103
    
	
Section 9.03.
    	
Binding   Effect
    	
103
    
	
Section 9.04.
    	
Successors   and Assigns
    	
103
    
	
Section 9.05.
    	
Expenses;   Indemnity
    	
110
    
	
Section 9.06.
    	
Right   of Setoff
    	
111
    
	
Section 9.07.
    	
Applicable   Law
    	
112
    
	
Section 9.08.
    	
Waivers;   Amendment
    	
112
    
	
Section 9.09.
    	
Interest   Rate Limitation
    	
113
    


 

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Section 9.10.
    	
Entire   Agreement
    	
114
    
	
Section 9.11.
    	
WAIVER   OF JURY TRIAL
    	
114
    
	
Section 9.12.
    	
Severability
    	
114
    
	
Section 9.13.
    	
Counterparts
    	
115
    
	
Section 9.14.
    	
Headings
    	
115
    
	
Section 9.15.
    	
Jurisdiction;   Consent to Service of Process
    	
115
    
	
Section 9.16.
    	
Confidentiality
    	
116
    
	
Section 9.17.
    	
Lender   Action
    	
116
    
	
Section 9.18.
    	
USA   PATRIOT Act Notice
    	
117
    
	
Section 9.19.
    	
No   Fiduciary Duty
    	
117
    
	
Section 9.20.
    	
Electronic   Execution of Assignments
    	
117
    


 

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SCHEDULES
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Schedule   1.01
    	
—
    	
 
    	
Guarantors
    
	
Schedule   2.01
    	
—
    	
 
    	
Lenders   and Commitments
    
	
Schedule   3.08
    	
—
    	
 
    	
Subsidiaries
    
	
Schedule   3.09
    	
—
    	
 
    	
Litigation
    
	
Schedule   3.10
    	
—
    	
 
    	
Restrictive   Agreements
    
	
Schedule   3.14
    	
-
    	
 
    	
Tax   Returns
    
	
Schedule   3.16
    	
—
    	
 
    	
Employee   Benefit Plans
    
	
Schedule   3.17
    	
—
    	
 
    	
Environmental   Matters
    
	
Schedule   3.18
    	
—
    	
 
    	
Insurance
    
	
Schedule   3.19
    	
—
    	
 
    	
UCC   Filing Offices
    
	
Schedule   3.20(a)
    	
—
    	
 
    	
Owned   Real Property
    
	
Schedule   3.20(b)
    	
—
    	
 
    	
Leased   Real Property
    
	
Schedule   3.25
    	
—
    	
 
    	
Intellectual   Property
    
	
Schedule   5.12
    	
—
    	
 
    	
Post-Closing   Collateral Matters
    
	
Schedule   6.01(d)
    	
—
    	
 
    	
Existing   Indebtedness
    
	
Schedule   6.02
    	
—
    	
 
    	
Existing   Liens
    
	
Schedule   6.05
    	
—
    	
 
    	
Existing   Investments
    
	
Schedule   6.16
    	
—
    	
 
    	
Affiliate   Transactions
    
	
 
    	
 
    	
 
    	
 
    
	
EXHIBITS
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Exhibit A
    	
—
    	
 
    	
Form of   Administrative Questionnaire
    
	
Exhibit B
    	
—
    	
 
    	
Form of   Assignment and Acceptance
    
	
Exhibit C
    	
—
    	
 
    	
Form of   Borrowing Request
    
	
Exhibit D-1
    	
—
    	
 
    	
Form of   Guarantee and Collateral Agreement
    
	
Exhibit D-2
    	
—
    	
 
    	
Form of   Pledge Agreement
    
	
Exhibit E
    	
—
    	
 
    	
Form of   Compliance Certificate
    
	
Exhibit F
    	
—
    	
 
    	
Form of   Affiliate Subordination Agreement
    
	
Exhibit G-1
    	
—
    	
 
    	
Form of   U.S. Tax Compliance Certificate
    
	
Exhibit G-2
    	
—
    	
 
    	
Form of   U.S. Tax Compliance Certificate
    
	
Exhibit G-3
    	
—
    	
 
    	
Form of   U.S. Tax Compliance Certificate
    
	
Exhibit G-4
    	
—
    	
 
    	
Form of   U.S. Tax Compliance Certificate
    


 

i









 

SECOND LIEN CREDIT AGREEMENT dated as of June 9, 2014 (this “Agreement”), among NEFF RENTAL LLC, a Delaware limited liability company (the “Borrower”), NEFF LLC, a Delaware limited liability company (the “Parent”), NEFF HOLDINGS LLC, a Delaware limited liability company (“Holdings”), the Lenders (such term and each other capitalized term used but not defined in this introductory statement having the meaning given it in Article 1), and CREDIT SUISSE AG (“Credit Suisse”), as administrative agent (in such capacity, including any successor thereto in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, including any successor thereto in such capacity, the “Collateral Agent”) for the Lenders.

 

The Borrower has requested the Lenders to extend credit in the form of Loans on the Closing Date in an aggregate principal amount not in excess of $575,000,000. The Borrower shall use the proceeds of the Loans solely (i) to redeem its outstanding 9.625% Senior Secured Notes due 2016 (the “Existing Notes”) in full in accordance with the indenture related thereto, (ii) to recapitalize its capital structure by paying a cash distribution on the Closing Date to direct and indirect holders of its Equity Interests in an aggregate amount not to exceed $355,000,000 (the “2014 Distribution”), (iii) for general corporate purposes and (iv) to pay fees and expenses incurred in connection with the Transactions, including prepayment premiums in connection with the redemption of the Existing Notes.

 

The Lenders are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

 

ARTICLE 1

DEFINITIONS

 

Section 1.01.            Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:

 

“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

 

“Acquired Entity” shall have the meaning assigned to such term in the definition of “Permitted Acquisition.”

 

“Additional Lenders” shall mean any Eligible Assignee (other than an Affiliated Lender or Purchasing Borrower Party) that makes an Incremental Loan pursuant to Section 2.24.

 

“Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum equal to the product of (i) the LIBO Rate in effect for such Interest Period and (ii) Statutory Reserves; provided that the Adjusted LIBO Rate shall not be less than 1.00% per annum.

 











 

“Administrative Agent” shall have the meaning assigned to such term in the introductory statement to this Agreement.

 

“Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.

 

“Affiliate” shall mean, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with such Person; provided, however, that, for purposes of the definition of “Eligible Assignee” and Section 6.16, the term “Affiliate” shall also include any Person that directly or indirectly owns 5% or more of any class of Equity Interests of the Person specified or that is an officer or director of the Person specified.

 

“Affiliate Subordination Agreement” shall mean an Affiliate Subordination Agreement in the form of Exhibit F pursuant to which intercompany obligations and advances owed by any Loan Party are subordinated to the Obligations.

 

“Affiliated Lender” shall mean the Sponsor and any other Affiliate of any Loan Party, other than Holdings and any Subsidiary of Holdings, in each case, that becomes an assignee pursuant to Section 9.04.

 

“Agents” shall have the meaning assigned to such term in Article VIII.

 

“Agreement” shall have the meaning assigned to such term in the introductory statement to this Agreement.

 

“Agreement Value” shall mean, for each Hedging Agreement, on any date of determination, the maximum aggregate amount (giving effect to any netting agreements) that Holdings, Parent, Borrower or any Restricted Subsidiary would be required to pay if such Hedging Agreement were terminated on such date.

 

“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1.00%, and (c) the Adjusted LIBO Rate for a one month Interest Period determined on such day (or, if such day is not a Business Day, the immediately preceding Business Day) determined by the Administrative Agent at approximately 11:00 a.m. (London time) on such date by reference to the Intercontinental Exchange Benchmark Administration (or successor thereto) plus 1.00%. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate

 

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or the Adjusted LIBO Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, as the case may be.

 

“Anti-Terrorism Laws” shall have the meaning assigned to such term in Section 3.26.

 

“Applicable Law” shall mean all laws, rules, regulations and governmental guidelines applicable to the Person, conduct, transaction, agreement or matter in question, including all applicable statutory law, common law and equitable principles, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities.

 

“Applicable Margin” shall mean, for any day (a) with respect to any Eurodollar Loan, 6.25% per annum and (b) with respect to any ABR Loan, 5.25% per annum.

 

“Asset Sale” shall mean the sale, transfer or other disposition (by way of merger, casualty, condemnation or otherwise) by any Loan Party or any of the Restricted Subsidiaries to any Person other than any Loan Party of (a) any Equity Interests of any of the Subsidiaries (other than directors’ qualifying shares) or (b) any other assets of any Loan Party or any of the Restricted Subsidiaries (other than (i) Inventory, damaged, obsolete or worn out assets, scrap and Cash Equivalents, in each case, disposed of in the Ordinary Course of Business, (ii) dispositions between or among Restricted Subsidiaries that are not Guarantors, (iii) one or more sales, transfers or other dispositions generating Net Cash Proceeds not in excess of $7,500,000 in the aggregate per fiscal year and (iv) Sale and Leaseback Transactions).

 

“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in the form of Exhibit B or such other form (including electronic documentation generated by ClearPar, Markitclear or other electronic platform) by as shall be approved by the Administrative Agent.

 

“Available Amount” shall mean, on any date of determination, an amount equal to difference between:

 

(a)                                 the sum of:

 

(i)                                     $30,000,000 (less the aggregate amount of Investments made in Unrestricted Subsidiaries or joint ventures pursuant to Section 6.05(o)), plus

 

(ii)                                  the Cumulative Retained Excess Cash Flow Amount on such date, plus

 

(iii)                               the net cash proceeds from (A) the issuance of Equity Interests of Holdings after the Closing Date (other than Disqualified Stock) and (B) all contributions of cash common equity to Holdings, plus

 

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(iv)                              the aggregate net cash proceeds and the fair market value (as determined in good faith by the Board of Directors of Holdings) of property or assets received by Holdings, Parent, the Borrower or any Restricted Subsidiary from the issuance and sale by Holdings, Parent, the Borrower or any Restricted Subsidiary after the Closing Date of Indebtedness that shall have been converted into or exchanged for Equity Interests of Holdings or a direct or indirect parent entity of Holdings, Parent, the Borrower or any such Restricted Subsidiary (other than Disqualified Stock); plus

 

(v)                                 to the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of the Investment, the proceeds received by Holdings, Parent, Borrower or any Restricted Subsidiary after the Closing Date in connection with cash returns, cash profits, cash distributions and similar cash amounts, repayments of loans in cash, in each case received on any Investment made after the Closing Date pursuant to Section 6.05(n) (in an amount not to exceed the original amount of such Investment); plus

 

(vi)                              an amount equal to the sum of (A) in the event any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or is liquidated into, Holdings, Parent, the Borrower or any Restricted Subsidiary, the amount of the Investments of Holdings, Parent, the Borrower or any Restricted Subsidiary in such Subsidiary made after the Closing Date pursuant to Section 6.05(n) (in an amount not to exceed the original amount of such Investment) and (B) the fair market value of the property or assets of any Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed to Holdings, Parent, the Borrower or any Restricted Subsidiary after the Closing Date from any dividend or other distribution by an Unrestricted Subsidiary (in an amount not to exceed the original amount of the Investment in such Unrestricted Subsidiary made pursuant to Section 6.05(n)); minus

 

(b)                                 the aggregate amount of the Available Amount previously utilized pursuant to Section 6.04(a)(vi), Section 6.05(n) and Section 6.08(b)(ii).

 

“Bankruptcy Code” shall mean Title 11 of the United States Code.

 

“Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.

 

“Borrower” shall have the meaning assigned to such term in the introductory statement to this Agreement.

 

“Borrower Materials” shall have the meaning assigned to such term in Section 9.01.

 

“Borrowing” shall mean Loans of the same Type made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

 

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“Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be approved by the Administrative Agent.

 

“Breakage Event” shall have the meaning assigned to such term in Section 2.16.

 

“Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in New York City or Miami, Florida are authorized or required by law to close; provided, however, that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.

 

“Capital Expenditures” shall mean, for any period, the additions to property, plant and equipment (including Rental Fleet and Equipment) and other capital expenditures of Parent, the Borrower and the Restricted Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of Holdings for such period prepared in accordance with GAAP, excluding any such expenditure made to restore, replace or rebuild property to the condition of such property immediately prior to any damage, loss, destruction or condemnation of such property, to the extent such expenditure is made with insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or condemnation.

 

“Capital Lease Obligations” of any Person shall mean the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP. For the avoidance of doubt, obligations in respect of rental splits shall not be deemed to be, and shall not be, Capital Lease Obligations.

 

“Cash Equivalents” shall mean:

 

(a)                                 direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of issuance thereof;

 

(b)                                 readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having a rating of BBB+ or higher from S&P or Baa1 or higher from Moody’s with maturities of twenty-four (24) months or less from the date of acquisition;

 

(c)                                  commercial paper maturing within one year from the date of acquisition thereof and having, at such date of acquisition, a rating of at least A-1 from S&P or at least P-1 from Moody’s;

 

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(d)                                 certificates of deposit, banker’s acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent, or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof or the District of Columbia that (i) is at least “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;

 

(e)                                  fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria of clause (d) above;

 

(f)                                   shares of any money market mutual or similar fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) through (e) 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; and

 

(g)                                  other short-term investments utilized by Foreign Restricted Subsidiaries in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing.

 

“CERCLA” shall mean the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 9601 et seq.).

 

“Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives promulgated by the Bank of International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.

 

“Change of Control” shall mean the occurrence of any of the following events:

 

(a)                                 at any time prior to the consummation of a Qualifying IPO, the Permitted Investors cease to “beneficially own” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), or to have the power to vote or direct the voting of, Voting Stock of Holdings representing more than fifty percent (50%) of the voting power of the total outstanding Voting Stock of Holdings;

 

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(b)                                 at any time as of or after the consummation of a Qualifying IPO, any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act, 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 Investors) shall become the “beneficial owner” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Voting Stock of the Qualifying IPO Issuer representing more than the greater of (i) thirty-five percent (35%) of the voting power of the total outstanding Voting Stock of the Qualifying IPO Issuer and (ii) the percentage of the then-outstanding Voting Stock of the Qualifying IPO Issuer owned directly or indirectly by the Permitted Investors collectively at such time;

 

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

 

(d)                                 Holdings ceases to own and control, directly or indirectly, all of the voting rights associated with all of the outstanding Equity Interests of Parent and Borrower; or

 

(e)                                  a “Change of Control” shall occur under and as defined in the Revolving Credit Facility Documentation.

 

“Charges” shall have the meaning assigned to such term in Section 9.09.

 

“Closing Date” shall mean June 9, 2014.

 

“Closing Date Commitment” shall mean, as to any Lender, the obligation of such Lender, if any, to make a Closing Date Loan to the Borrower hereunder in a principal amount not to exceed the amount set forth under the heading “Closing Date Commitment” opposite such Lender’s name on Schedule 2.01, or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The original aggregate amount of the Closing Date Commitments is $575,000,000.

 

“Closing Date Loan” shall have the meaning assigned to such term in Section 2.01.

 

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

 

“Collateral” shall mean all the “Collateral” as defined in any Security Document.

 

“Collateral Agent” shall have the meaning assigned to such term in the introductory statement to this Agreement.

 

“Commitment” shall mean, as to any Lender, the obligation of such Lender, if any, to make a Loan to the Borrower under this Agreement, including its Closing Date Commitment and Incremental Commitment.

 

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“Communications” shall have the meaning assigned to such term in Section 9.01.

 

“Confidential Information Memorandum” shall mean the Confidential Information Memorandum of the Borrower dated May, 2014.

 

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period plus (a) without duplication and (except with respect to clause (ix)) to the extent deducted in determining such Consolidated Net Income, the sum of (i) Consolidated Interest Expense for such period, (ii) any provision for taxes based on income, capital or profits, including state, franchise and similar taxes and foreign withholding taxes paid or accrued during such period (including Permitted Tax Distributions), (iii) depreciation for such period, (iv) amortization expense for such period, (v) (A) reasonable and customary fees and expenses in connection with the Transactions and the 2013 Notes Transactions (as defined in the Revolving Credit Facility) including any payment of fees under the Fee Letters (as defined in the Revolving Credit Facility) and any consent payments paid in connection with the Consent Solicitation (as defined in the Revolving Credit Facility) for such period and (B) incentive bonuses and other compensation, if any, paid or payable to employees and/or to members of the board of managers (or equivalent) in connection with the consummation of the Transactions for such period, (vi) all other non-cash charges for such period (including the amount of (A) compensation deduction as the result of any grant of Equity Interests to employees, officers, directors, managers or members of management and (B) asset write-downs but excluding the write-down of any accounts receivable), (vii) losses, expenses or charges arising from discontinued operations and/or the sale of capital assets for such period (excluding losses from the sale of Rental Fleet and Equipment and other Inventory in the Ordinary Course of Business), (viii) any extraordinary and non-recurring expenses or losses for such period, (ix) subject to Section 1.03, restructuring expenses or charges, operating expense reductions, cost savings and synergies (collectively, “Cost Savings”) projected by the Borrower in good faith to be realized in connection with any Pro Forma Transactions and/or other initiatives after the Closing Date (in each case as though such Cost Savings had been realized on the first day of such period and as if such Cost Savings were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) with respect to Cost Savings, a duly completed certificate signed by a Financial Officer of the Borrower shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 5.04, certifying that such Cost Savings are (x) reasonably supportable and quantifiable in the good faith judgment of the Borrower, and (y) reasonably anticipated to be realized within one year after the consummation of the transaction or initiative that is expected to result in such Cost Savings and (B) no Cost Savings shall be added pursuant to this clause (ix) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise; provided, further that the aggregate amount added back pursuant to this clause (ix) shall not exceed 15.0% of

 

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Consolidated EBITDA with respect to such period (prior to giving effect to the add-back pursuant to this clause (ix)), (x) expenses and charges incurred in connection with the consummation of Permitted Acquisitions, the issuance of Qualified Capital Stock or the incurrence of, or amendments to, Indebtedness (in each case, whether or not the applicable Permitted Acquisition, issuance of Qualified Capital Stock or incurrence of, or amendments to, Indebtedness is consummated), (xi) expenses attributable to minority interests (excluding dividends and other distributions paid or payable in cash to the holders of such minority interests), (xii) expenses in connection with rental splits, (xiii) expenses and charges in connection with impairment of goodwill and other intangible assets and (xiv) out-of-pocket expenses incurred by Permitted Investors (or any of their principals, employees, agents or other representatives) in connection with its performance of management, consulting, monitoring, financial advisory or other services provided to Holdings and its Subsidiaries and minus (b) without duplication and to the extent included in calculating Consolidated Net Income, (i) gains arising from discontinued operations and/or the sale of capital assets for such period (excluding gains from the sale of Rental Fleet and Equipment and other Inventory in the Ordinary Course of Business) and all other non-cash gains for such period, (ii) all cash payments made during such period on account of reserves, restructuring charges and other non-cash charges added to Consolidated Net Income pursuant to clause (a)(vi) above in a previous period and (iii) any extraordinary, unusual or non-recurring gains for such period and all non-cash items of income (other than the accrual of revenue or recording of receivables in the Ordinary Course of Business) for such period, all determined on a consolidated basis in accordance with GAAP.

 

“Consolidated Interest Expense” shall mean, for any period, the sum of (a) the interest expense (including imputed interest expense in respect of Capital Lease Obligations and Synthetic Lease Obligations) of Parent, the Borrower and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, plus (b) any interest accrued during such period in respect of Indebtedness of Parent, the Borrower and the Restricted Subsidiary that is required to be capitalized rather than included in consolidated interest expense for such period in accordance with GAAP. For purposes of the foregoing, interest expense shall be determined after giving effect to any net payments made or received by the Parent, the Borrower or any Restricted Subsidiary with respect to interest rate Hedging Agreements.

 

“Consolidated Net Income” shall mean, for any period, the net income or loss of Parent, the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the net income of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of that net income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Restricted Subsidiary (except as contemplated by Section 1.03), (b) the income or loss of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into or consolidated with Parent, the Borrower or any Restricted Subsidiary or the date that such Person’s assets are acquired by Parent, the Borrower or any Restricted Subsidiary, and (c) the income of any Person in which any other Person (other than Parent, the

 

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Borrower or a Wholly Owned Restricted Subsidiary or any director holding qualifying shares in accordance with applicable law) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid in cash to Parent, the Borrower or a Wholly Owned Restricted Subsidiary by such Person during such period.

 

“Consolidated Tangible Assets” shall mean, with respect to Holdings as of any date, the amount which, measured as of the most recent date for which financial statements have been delivered pursuant to Section 5.04(a) or (b), in accordance with GAAP, would be set forth under the caption “Total Assets” (or any like caption) on a consolidated balance sheet of Holdings, less all goodwill, Intellectual Property, franchises, experimental expenses, organization expenses and any other amounts classified as intangible assets in accordance with GAAP.

 

“Continuing Directors” means the directors or managers of the Qualifying IPO Issuer, and each other director or manager, if, in each case, such other director’s or manager’s nomination for election to the board of directors of the Qualifying IPO Issuer is recommended by at least a majority of the then Continuing Directors or such other director or manager is approved by, or receives the vote of, the Permitted Investors in his or her election by the holders of the Equity Interests of the Qualifying IPO Issuer.

 

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

 

“Cost Savings” shall have the meaning assigned to such term in the definition of “Consolidated EBITDA”.

 

“Credit Suisse” shall have the meaning assigned to such term in the introductory statement to this Agreement.

 

“Cumulative Retained Excess Cash Flow Amount” shall mean, at any date, an amount, not less than zero, determined on a cumulative basis equal to the amount of Excess Cash Flow for all completed Excess Cash Flow Periods that is not (and, in the case of any fiscal year where the respective required date of prepayment has not yet occurred pursuant to Section 2.13(b), will not on such date of required prepayment be) required to be applied in accordance with Section 2.13(b) (prior to giving effect to any Optional Prepayment Amount).

 

“CWA” shall mean the Clean Water Act (33 U.S.C. §§ 1251 et seq.).

 

“Debt Fund Affiliate” shall mean any Affiliated Lender that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course of business and with respect to which an Affiliate of a Loan Party does not (or did not), directly or indirectly, possess the power to direct or cause the direction of the investment policies of such entity.

 

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“Debtor Relief Laws” means Title 11 of the United States Code, as now constituted or hereafter amended, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

 

“Default” shall mean any event or condition which upon notice, lapse of time or both would constitute an Event of Default.

 

“Defaulting Lender” means, subject to Section 2.23(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to any Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower and the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.23(b)) upon delivery of written notice of such determination to the Borrower and each Lender.

 

“Designation” shall have the meaning assigned to such term in Section 5.11(a).

 

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“Disqualified Institution” shall mean (a) any Person designated by the Borrower as a “Disqualified Institution” by written notice delivered to the Administrative Agent and made available to any Lender upon request of such Lender and (b) any other Person that is a competitor of any Loan Party or their Subsidiaries that has been designated by the Borrower as a “Disqualified Institution” by written notice delivered to the Administrative Agent and made available to any Lender upon request of such Lender and each affiliate thereof that is reasonably identifiable based solely on its name (other than banks, financial institutions or bona fide debt funds or investment vehicles that are engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business for which no personnel involved with the management of such competitor or affiliate thereof, as applicable, (i) makes any investment decisions or (ii) has access to any information (other than information publicly available) relating to the Borrower or any entity that forms a part of the Borrower’s business (including subsidiaries of the Borrower)).

 

“Disqualified Stock” shall mean any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) 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 option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case at any time on or prior to the date that is 121 days after the Latest Maturity Date, or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest referred to in clause (a) above, in each case at any time prior to the date that is 121 days after the Latest Maturity Date.

 

“Dollars” or “$” shall mean lawful money of the United States of America.

 

“Domestic Restricted Subsidiary” shall mean a Domestic Subsidiary that is a Restricted Subsidiary.

 

“Domestic Subsidiary” shall mean any Subsidiary incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia.

 

“Dutch Auction” shall mean an auction of Loans conducted by Holdings or any Subsidiary thereof (i) pursuant to Section 9.04(k) to allow an Affiliated Lender to acquire Loans at a discount to par value and on a non-pro rata basis or (ii) pursuant to Section 9.04(m) to allow a Purchasing Borrower Party to prepay Loans at a discount to par value and on a pro rata or non-pro rata basis, in each case in accordance with the applicable Dutch Auction Procedures.

 

“Dutch Auction Procedures” shall mean with respect to a purchase of Loans by an Affiliated Lender pursuant to Section 9.04(k) or with respect to a purchase or prepayment of Loans by a Purchasing Borrower Party pursuant to Section 9.04(m), Dutch

 

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auction procedures as reasonably agreed upon by such Affiliated Lender or Purchasing Borrower Party, as the case may be, and the Administrative Agent.

 

“Eligible Assignee” means (i) a Lender, (ii) an Affiliate of a Lender, (iii) a Related Fund of a Lender, (iv) any other Person (other than a natural person) approved by the Administrative Agent and (v) subject to the terms of Sections 9.04(k) through (m), Affiliated Lenders and Purchasing Borrower Parties; provided that notwithstanding the foregoing, “Eligible Assignee” shall not include any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender.

 

“Environmental Laws” shall mean all Applicable Laws (including all permits or other legal requirements, agreements or restrictions issued by or entered into with a Governmental Authority), relating to pollution, the protection of human health (to the extent relating to exposure to hazardous materials) or the environment, including CERCLA, RCRA and CWA.

 

“Environmental Liability” shall mean all liabilities, obligations, damages, losses, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent or otherwise, arising out of or relating to (a) any Environmental Law, including any non-compliance or liability thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) an Environmental Release or threatened Environmental Release or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

“Environmental Notice” shall mean written notice from any Governmental Authority or other Person of any alleged noncompliance with, investigation of a potential violation of, litigation relating to, or potential fine under, any Environmental Law or arising from an Environmental Release or threatened Environmental Release, or relating to any Environmental Liability, including any complaint, summons, citation, order, claim, demand or request for corrective action, remediation or otherwise.

 

“Environmental Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing (including the abandonment or discarding of barrels, containers, and other closed receptacles) of any Hazardous Material into the indoor or outdoor environment.

 

“Equity Interests” shall mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any Person, and any option, warrant or other right entitling the holder thereof to purchase or otherwise acquire any such equity interest.

 

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

 

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“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) under common control with Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

 

“ERISA Event” shall mean (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Pension 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) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the failure to meet the minimum funding standard of Sections 412 or 430 of the Code with respect to any Pension Plan (whether or not waived) or the failure to make any required contribution to a Multiemployer Plan (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate; or (h) the failure of any Pension Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code.

 

“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

 

“Events of Default” shall have the meaning assigned to such term in Article 7.

 

“Excess Cash Flow” shall mean, for any Excess Cash Flow Period, the excess of (a) the sum of (i) Consolidated EBITDA for such Excess Cash Flow Period (excluding any non-cash items increasing Consolidated EBITDA pursuant to clause (a)(ix) of the definition thereof) and (ii) any decrease in working capital (excluding cash and cash equivalents but including changes in Inventory) of Holdings, Parent, the Borrower and the Restricted Subsidiaries for such Excess Cash Flow Period in excess of $20,000,000; over (b) the sum, without duplication, of (i) any provision for taxes based on income, capital, or profits, including state, franchise and similar taxes and foreign withholding taxes paid (without duplication of any deduction in any prior Excess Cash Flow Period for taxes accrued) or accrued and due and payable within 105 days of the end of such Excess Cash Flow Period during such period (including without duplication Permitted Tax Distributions paid in cash by Holdings, Parent, the Borrower and the Restricted Subsidiaries) with respect to such Excess Cash Flow Period, (ii) Consolidated Interest Expense for such Excess Cash Flow Period, (iii) Capital Expenditures and Investments permitted under Section 6.05 (other than Sections 6.05(a), (b), (c), (e) and any other intercompany Investments between or among Holdings, Parent, the Borrower and any

 

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Restricted Subsidiaries) made or consummated during such Excess Cash Flow Period, in each case to the extent funded with Internally Generated Cash Flow, (iv) permanent repayments of Indebtedness (other than (x) mandatory prepayments of Loans under Section 2.13(a), (b) or (c) and (y) optional prepayments of the Loans made pursuant to Section 2.12 and the amount of cash paid for Loans acquired by a Purchasing Borrower Party and cancelled in accordance with Section 9.04(m) and pursuant to Dutch Auction procedures open to all Lenders on a pro rata basis) made by Holdings, Parent, the Borrower and the Restricted Subsidiaries during such Excess Cash Flow Period with Internally Generated Cash Flow, but only to the extent that the Indebtedness so prepaid by its terms cannot be reborrowed or redrawn and such prepayments do not occur in connection with a refinancing of all or any portion of such Indebtedness, (v) cash expenditures made during such Excess Cash Flow Period that increased Consolidated EBITDA for such Excess Cash Flow Period pursuant to clause (a)(v), (a)(viii), (a)(x), (a)(xii) and (a)(xiv) of the definition of “Consolidated EBITDA,” (vi) any increase in working capital (other than cash and cash equivalents but including changes in Inventory) of Holdings, Parent, the Borrower and its Restricted Subsidiaries for such Excess Cash Flow Period in excess of $20,000,000, (vii) the aggregate consideration required to be paid in cash by Holdings, Parent, the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts entered into during such period (the “Contract Consideration”) relating to Permitted Acquisitions or Capital Expenditures to be consummated or made within 365 days following the end of such Excess Cash Flow Period; provided that to the extent the amount actually utilized to fund such Permitted Acquisition or Capital Expenditure during such 365-day period from Internally Generated Cash Flow is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period and (viii) cash payments against non-cash charges accrued in a prior Excess Cash Flow Period (and that reduced Excess Cash Flow in such prior period).

 

“Excess Cash Flow Period” shall mean each fiscal year of Holdings, commencing with its fiscal year ending December 31, 2015.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.21(a)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.20, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such

 

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Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.20(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.

 

“Existing Notes” shall have the meaning assigned to such term in the introductory statement to this Agreement.

 

“Extended Loans” shall have the meaning assigned to such term in Section 2.22(a).

 

“Extending Lender” shall have the meaning assigned to such term in Section 2.22(a).

 

“Extension” shall have the meaning assigned to such term in Section 2.22(a).

 

“Extension Amendment” shall have the meaning assigned to such term in Section 2.22(c).

 

“Extension Offer” shall have the meaning assigned to such term in Section 2.22(a).

 

“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

“FCPA” shall have the meaning assigned to such term in Section 3.26.

 

“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

“Fees” shall have the meaning assigned to such term in Section 2.05(a).

 

“Financial Officer” of any Person shall mean the chief financial officer, principal accounting officer, treasurer or controller of such Person.

 

“Foreign Lender” shall mean any Lender that is not a U.S. Person.

 

“Foreign Restricted Subsidiary” shall mean a Foreign Subsidiary that is a Restricted Subsidiary.

 

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“Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.

 

“GAAP” shall mean United States generally accepted accounting principles applied on a basis consistent with the financial statements delivered pursuant to Section 4.01(p).

 

“Governmental Authority” shall mean any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.

 

“Guarantee” of or by any Person shall mean any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of such Indebtedness or other obligation or (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation; provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.

 

“Guarantee and Collateral Agreement” shall mean the Guarantee and Collateral Agreement, substantially in the form of Exhibit D-1, among Holdings, Parent, the Borrower, the Subsidiaries party thereto and the Collateral Agent for the benefit of the Secured Parties.

 

“Guarantors” shall mean Holdings, Parent, each Restricted Subsidiary listed on Schedule 1.01 and each other Restricted Subsidiary that is or becomes a party to the Guarantee and Collateral Agreement.

 

“Hazardous Materials” shall mean any “hazardous waste,” “hazardous material,” “hazardous substance,” “toxic substance,” “contaminant,” “pollutant,” or term of similar import as defined, regulated or for which liability may arise under any applicable Environmental Law.

 

“Hedging Agreement” shall mean any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.

 

“Holdings” shall have the meaning assigned to such term in the introductory statement to this Agreement.

 

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“Incremental Cap” shall mean the sum of (x) $75,000,000 and (y) an additional amount such that the Total Leverage Ratio shall be equal to or less than 5.25 to 1.00 on a pro forma basis, as if such Indebtedness had been outstanding on the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), evidence of which shall have been certified by a Financial Officer of the Borrower in an officer’s certificate delivered to the Administrative Agent.

 

“Incremental Commitment” shall mean the commitment of any Lender, established pursuant to Section 2.24, to make Incremental Loans to the Borrower.

 

“Incremental Facility” shall have the meaning assigned to such term in Section 2.24(a).

 

“Incremental Facility Amendment” shall have the meaning assigned to such term in Section 2.24(a).

 

“Incremental Facility Closing Date” shall have the meaning assigned to such term in Section 2.24(a).

 

“Incremental Loans” shall have the meaning assigned to such term in Section 2.24(a).

 

“Indebtedness” of any Person shall mean, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding rental splits, trade accounts payable and accrued obligations incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person (up to the value of such property), whether or not the obligations secured thereby have been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all Synthetic Lease Obligations of such Person, (j) net obligations of such Person under any Hedging Agreements, valued at the Agreement Value thereof, (k) all obligations of such Person in respect of any Disqualified Stock, (l) all reimbursement obligations of such Person as an account party in respect of letters of credit and (m) all obligations of such Person in respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner.

 

“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

 

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“Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).

 

“Information” shall have the meaning assigned to such term in Section 9.16.

 

“Insolvency Proceeding” shall mean any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other custodian for such Person or any part of its Property; or (c) an assignment or trust mortgage for the benefit of creditors.

 

“Intellectual Property” shall mean (i) all intellectual and similar Property of a Person, including inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases, (ii) all embodiments or fixations thereof and all related documentation, applications, registrations and franchises, (iii) all licenses or other rights to use any of the foregoing and (iv) all books and records relating to the foregoing.

 

“Intellectual Property Claim” shall mean any claim or assertion (whether in writing or by suit) that any Loan Party’s or a Restricted Subsidiary’s ownership, use, marketing, sale or distribution of any Intellectual Property or other Property violates another Person’s Intellectual Property.

 

“Intercreditor Agreement” shall mean that certain intercreditor agreement dated as of the date hereof among Holdings, Parent and the Borrower, the Subsidiaries of the Parent party thereto, the Revolving Agent and the Administration Agent.

 

“Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December, and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing.

 

“Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the Borrower may elect; provided, however, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that begins on the last 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 Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period and (c) no Interest Period for any Loan shall extend beyond the

 

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maturity date of such Loan. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

“Internally Generated Cash Flow” shall mean cash and Cash Equivalents on the balance sheet not constituting, without duplication, (i) proceeds of Indebtedness of Parent, the Borrower and the Restricted Subsidiaries, (ii) proceeds of issuances of Equity Interests of, or capital contributions to, Parent, the Borrower and the Restricted Subsidiaries, (iii) proceeds of any casualty proceeds, condemnation proceeds or other proceeds that would not be included in Consolidated EBITDA, (iv) proceeds of any Reinvestment Deferred Amount and (v) amounts constituting the Cumulative Retained Excess Cash Flow Amount.

 

“Inventory” means any “inventory,” as such term is defined in the UCC, including Rental Fleet and Equipment, now owned or hereafter acquired by any Loan Party, wherever located, including inventory, merchandise, goods and other personal property that are held by or on behalf of any Loan 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, returned goods, supplies or materials of any kind, nature or description used or consumed or to be used or consumed in such Loan Party’s business or in the processing, production, packaging, promotion, delivery or shipping of the same, including all supplied and embedded software.

 

“Investment” shall have the meaning assigned to such term in Section 6.05.

 

“Junior Debt” shall mean (i) unsecured Indebtedness, (ii) Subordinated Debt and (iii) Junior Secured Debt.

 

“Junior Secured Debt” shall mean Indebtedness that is a secured by a Lien on the Collateral that is junior to the Collateral Agent’s Lien on the Collateral.

 

“Latest Maturity Date” shall mean, at any time of determination, the latest maturity or expiration date applicable to any Loan hereunder at such time.

 

“Lenders” shall mean (a) the Persons listed on Schedule 2.01 (other than any such Person that has ceased to be a party hereto pursuant to an Assignment and Acceptance), (b) any Person that has become a party hereto pursuant to an Assignment and Acceptance and (c) Additional Lenders, if any.

 

“LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the commencement of such Interest Period by reference to the Intercontinental Exchange Benchmark Administration (or successor thereto) for Interest Settlement Rates for deposits in Dollars (as set forth by the Bloomberg Information Service or any successor

 

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thereto or any other readily available service reasonably selected by the Administrative Agent in consultation with the Borrower that has been nominated by the Intercontinental Exchange Benchmark Administration (or successor thereto) as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period; provided that to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period.

 

“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

“Liquidity” shall mean, as of any date, the sum of, without duplication, (A)(i) Excess Availability (as defined in the Revolving Credit Facility) as of such date or (ii) if such term is not defined in the Revolving Credit Facility as of such date, the aggregate amount of unused commitments under the Revolving Credit Facility available to be borrowed as of such date and (B) unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries as of such date.

 

“Liquidity Conditions” shall mean, immediately before and after giving effect to any mandatory prepayment under Section 2.13(b) for any Excess Cash Flow Period, Liquidity of not less than $65,000,000; provided that, for purposes of Section 2.13(b), if the Revolving Credit Facility ceases to be an asset-based revolving credit facility that is subject to a borrowing base, the Liquidity Conditions shall be deemed to have been satisfied.

 

“Loan Documents” shall mean this Agreement, the Security Documents, the promissory notes, if any, executed and delivered pursuant to Section 2.04(e), any Permitted Amendment and any other document executed in connection with the foregoing.

 

“Loan Parties” shall mean Holdings, Parent, the Borrower and the other Guarantors.

 

“Loans” shall mean the term loans made by the Lenders to the Borrower pursuant to this Agreement.

 

“Margin Stock” shall have the meaning assigned to such term in Regulation U.

 

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“Material Adverse Effect” shall mean any event or circumstance that has a material adverse effect on (a) the business, operations, Properties, or financial condition of the Loan Parties and the Restricted Subsidiaries, taken as a whole; (b) the ability of the Loan Parties taken as a whole to perform their obligations under the Loan Documents, including repayment of any Obligations; or (c) the ability of the Administrative Agent, the Collateral Agent or any Lender to enforce or collect the Obligations or to realize upon the Collateral.

 

“Material Contract” shall mean any agreement or arrangement to which any Loan Party is party (other than the Loan Documents), the failure of which to keep in full force and effect could reasonably be expected to have a Material Adverse Effect.

 

“Material Indebtedness” shall mean (a) the Revolving Credit Facility and (b) Indebtedness (other than the Loans), or obligations in respect of one or more Hedging Agreements, of any one or more of any Loan Party or any Restricted Subsidiary in an aggregate principal amount exceeding $30,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of any Loan Parties or any Restricted Subsidiary in respect of any Hedging Agreement at any time shall be the Agreement Value of such Hedging Agreement at such time.

 

“Material Lease” shall mean any lease to which any Loan Party or any Restricted Subsidiary is party, the failure of which to keep in full force and effect could reasonably be expected to have a Material Adverse Effect.

 

“Maturity Date” shall mean June 9, 2021; provided that the reference to “Maturity Date” with respect to Incremental Loans shall be the final maturity date as specified in the applicable Incremental Facility Amendment and with respect to Extended Loans shall be the final maturity date as specified in the applicable Extension Offer.

 

“Maximum Rate” shall have the meaning assigned to such term in Section 9.09.

 

“Minimum Extension Condition” shall have the meaning assigned to such term in Section 2.22(b).

 

“Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.

 

“Multiemployer Plan” shall mean any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which Borrower makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions or with respect to which the Borrower could reasonably be expected to incur liability.

 

“Net Cash Proceeds” shall mean (a) with respect to any Asset Sale, the cash proceeds (including cash proceeds subsequently received (as and when received) in respect of noncash consideration initially received), net of (i) selling expenses (including customary broker’s fees or commissions, legal and accounting fees, transfer and similar taxes and the Borrower’s good faith estimate of income taxes paid or payable in

 

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connection with such sale), (ii) amounts provided as a reserve, in accordance with GAAP, against any liabilities under any indemnification obligations or purchase price adjustment associated with such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds) and (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money which is secured by the asset sold in such Asset Sale and which is required to be repaid (x) with such proceeds or (y) because the asset sold is removed from a borrowing base supporting such Indebtedness (other than any such Indebtedness assumed by the purchaser of such asset and other than Junior Secured Debt); provided, however, that, if (x) the Borrower delivers a Reinvestment Notice to the Administrative Agent within ten Business Days of receipt of such proceeds and (y) no Event of Default shall have occurred and shall be continuing at the time of such Reinvestment Notice or at the proposed time of the application of such proceeds, such proceeds shall not constitute Net Cash Proceeds except to the extent not so applied during the Reinvestment Period, at which time such proceeds shall be deemed to be Net Cash Proceeds and (b) with respect to any issuance or incurrence of Indebtedness, the cash proceeds thereof, net of all taxes and customary fees, commissions, costs, underwriting discounts, prepayment premiums and other expenses incurred in connection therewith or the use of proceeds thereof.

 

“Non-Debt Fund Affiliate” shall mean any Affiliated Lender other than a Debt Fund Affiliate.

 

“Non-Recourse Debt” shall mean Indebtedness of an Unrestricted Subsidiary:

 

(1)                                 as to which no Loan Party nor any Restricted Subsidiary (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) (other than with respect to a pledge of, or the grant of a Lien on, Equity Interests in such Unrestricted Subsidiary), (b) is directly or indirectly liable as a guarantor or otherwise (other than with respect to a pledge of, or the grant of a Lien on, Equity Interests in such Unrestricted Subsidiary), or (c) constitutes the lender; and

 

(2)                                 no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than this Agreement or the Revolving Credit Facility) of any Loan Party or any Restricted Subsidiary to declare a default on the other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity.

 

“Obligations” shall mean the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any Insolvency Proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding) the Loans and all other obligations and liabilities of the Loan Parties and the Restricted Subsidiaries to the Administrative Agent, the Collateral

 

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Agent or to any Lender whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs or expenses (including all fees, charges and disbursements of counsel to the Agents or to any Lender that are required to be paid by the Borrower pursuant hereto).

 

“OFAC” shall have the meaning assigned to such term in Section 3.26.

 

“Optional Prepayment Amount” shall mean, for any Excess Cash Flow Period, the aggregate amount of (x) all optional prepayments of the Loans during such Excess Cash Flow Period and (y) all Loans acquired by a Purchasing Borrower Party in accordance with Section 9.04(m)(ii)(A) and cancelled in accordance with Section 9.04(m) during such Excess Cash Flow Period, in each case to the extent such prepayment or purchase is funded with Internally Generated Cash Flow; provided that for purposes of clause (y), the Optional Prepayment Amount shall include only the aggregate amount of cash actually paid by such Purchasing Borrower Party in respect of the principal amount of the Loans so acquired and cancelled.

 

“Ordinary Course of Business” shall mean the ordinary course of business of the Loan Parties or any Restricted Subsidiary, undertaken in good faith.

 

“Organic Documents” shall mean with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, limited liability company agreement, operating agreement, members agreement, stockholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person.

 

“OSHA” shall mean the Occupational Safety and Health Act of 1970.

 

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.21(a)).

 

“Participant” shall have the meaning assigned to such term in Section 9.04(f).

 

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“Participant Register” shall have the meaning assigned to such term in Section 9.04(f).

 

“Payment Item” shall mean each check, draft or other item of payment payable to any Loan Party or a Restricted Subsidiary, including those constituting proceeds of any Collateral.

 

“PBGC” shall mean the Pension Benefit Guaranty Corporation.

 

“Pension Plan” shall mean any employee pension benefit plan, as defined in Section 3(2) of ERISA, (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA which is maintained or contributed to by the Borrower or with respect to which the Borrower could reasonably be expected to incur liability (including under Section 4069 of ERISA).

 

“Perfection Certificate” shall mean the Perfection Certificate substantially in the form of Exhibit A to the Guarantee and Collateral Agreement.

 

“Perfection Certificate Supplement” shall mean a supplement to the Perfection Certificate substantially in the form of Exhibit B to the Guarantee and Collateral Agreement.

 

“Permitted Acquisition” shall mean any transaction or series of related transactions for the direct or indirect acquisition of all or substantially all the assets of a Person or line of business of such Person, or not less than 100% of the Equity Interests (other than directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”); provided that

 

(i)                             the Acquired Entity shall be a Person organized under the laws of the United States of America, any State thereof or the District of Columbia and shall be engaged in a line of business that complies with Section 6.15;

 

(ii)                            at the time of such transaction both before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;

 

(iii)                             the Borrower shall have delivered a certificate of a Financial Officer, certifying as to the foregoing in form and substance reasonably satisfactory to the Administrative Agent;

 

(iv)                           the applicable acquiring Loan Party shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Section 5.09 and the Security Documents (it being understood, for the avoidance of doubt, that each Acquired Entity shall become a Guarantor); and

 

(v)                            to the extent received by Holdings, Parent or the Borrower, shall have been delivered to the Administrative Agent the most recent historical financial statements in respect of the Acquired Entity (but not more than three years of historical financial statements).

 

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“Permitted Amendment” shall mean any Extension Amendment or Incremental Facility Amendment.

 

“Permitted Investors” shall mean private investment funds managed by Wayzata Investment Partners, LLC and its Affiliates (excluding any portfolio company).

 

“Permitted Junior Priority Refinancing Debt” shall mean secured Indebtedness incurred by the Borrower in the form of one or more series of junior lien secured notes or junior lien secured loans incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in conversion of, or exchange for, or to extend, renew, replace or refinance, in whole or in part, Loans hereunder; provided that (a) such Indebtedness is secured by Liens on the Collateral on a junior basis to the Liens on the Collateral securing the Obligations and is not secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral, (b) such Indebtedness is not guaranteed by any Person that is not a Loan Party, (c) the terms of such Indebtedness, as compared to the Loans being extended, renewed, replaced or refinanced, are not materially less favorable, in the aggregate, to the Loan Parties, the Restricted Subsidiaries and the Lenders, (d) the proceeds of such Indebtedness are applied immediately upon incurrence to refinance the Loans being refinanced, (e) such extending, renewing or refinancing Indebtedness is in an original aggregate principal amount not greater than the aggregate principal amount of the Loans being refinanced plus unpaid accrued interest and premium thereon, any committed or undrawn and other reasonable amounts paid and underwriting discounts, fees, commissions and expenses associated with such Refinancing Indebtedness, except as otherwise permitted under Section 6.01 and, if applicable, Section 6.02 (so long as such additional amounts are deemed utilization of the applicable basket under Section 6.01 and, if applicable, 6.02, and not the Permitted Junior Priority Refinancing Debt exception), (f) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days after the Latest Maturity Date (determined immediately prior to the time such Indebtedness is incurred) and (g) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent reflecting the priority of such Indebtedness as junior to the Obligations.

 

“Permitted Liens” shall mean the collective reference to (i) in the case of Collateral other than Pledged Capital Stock, Liens permitted by Section 6.02 and (ii) in the case of Collateral consisting of Pledged Capital Stock, non-consensual Liens permitted by Section 6.02 and Liens permitted by Sections 6.02(c) and 6.02(j)(ii).

 

“Permitted Pari Passu Priority Refinancing Debt” shall mean any secured Indebtedness incurred by the Borrower in the form of one or more series of senior secured notes incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in conversion of, or exchange for, or to extend, renew, replace or refinance, in whole or in part, Loans hereunder; provided that (a) such Indebtedness is secured by the Collateral on a pari passu basis with the Obligations and is not secured by any property or assets of Holdings, Parent, the Borrower or any Restricted Subsidiary other than the Collateral, (b) such Indebtedness is not guaranteed by any

 

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Person that is not a Loan Party, (c) the terms of such Indebtedness, as compared to the Loans being extended, renewed, replaced or refinanced, are not materially less favorable, in the aggregate, to the Loan Parties, the Restricted Subsidiaries and the Lenders, (d) the proceeds of such Indebtedness are applied immediately upon incurrence to refinance the Loans being refinanced, (e) such extending, renewing or refinancing Indebtedness is in an original aggregate principal amount not greater than the aggregate principal amount of the Loans being refinanced plus unpaid accrued interest and premium thereon, any committed or undrawn and other reasonable amounts paid and underwriting discounts, fees, commissions and expenses associated with such Refinancing Indebtedness, except as otherwise permitted under Section 6.01 and, if applicable, Section 6.02 (so long as such additional amounts are deemed utilization of the applicable basket under Section 6.01 and, if applicable, 6.02, and not the Permitted Pari Passu Priority Refinancing Debt exception), (f) such Indebtedness does not mature prior to the Latest Maturity Date (determined immediately prior to the time such Indebtedness is incurred), (g) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to an intercreditor agreement, which for avoidance of doubt may include becoming a party to the Intercreditor Agreement by way of a joinder, in either case in form and substance reasonably satisfactory to the Administrative Agent reflecting the priority of such Indebtedness as pari passu with the Obligations, and (h) such Indebtedness has a Weighted Average Life to Maturity that is not shorter than the Loans that remain outstanding.

 

“Permitted Purchase Money Debt” shall mean Purchase Money Debt of the Borrower and the Restricted Subsidiaries that is unsecured or secured only by a Purchase Money Lien, as long as the aggregate principal amount does not exceed at any time the greater of (a) $20,000,000 or (b) 4.0% of Holding’s Consolidated Tangible Assets.

 

“Permitted Tax Distributions” shall mean:

 

(1)                                 for so long as for U.S. federal income tax purposes, Parent is taxed as a partnership or disregarded entity and is not wholly owned (directly or indirectly) by a corporate parent, (A) with respect to any taxable year ending after the Closing Date, cash distributions to fund the assumed income tax liabilities of the direct or indirect equity owners of Parent (including estimated tax liabilities) in respect of the income of Parent for such taxable year, in an aggregate amount equal to the excess of (i) the product of (x) the net taxable income of Parent (treating Parent as a taxable entity, and including in such net taxable income Parent’s distributive share of all tax items attributable to any subsidiary of Parent taxed as a partnership or disregarded entity) for the taxable year in question, reduced by any cumulative net taxable loss with respect to all prior taxable years ending after the Closing Date (determined as if all such taxable years were one taxable period) to the extent such cumulative net taxable loss is of a character (ordinary or capital) that would permit such loss to be deducted against the income of the taxable year in question and (y) the highest combined marginal federal and applicable state and/or local income tax rate (taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes and the character of the taxable income in question (i.e., long term capital gain, qualified dividend income, etc.)) applicable to an individual United States citizen residing in New York, New York for the

 

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taxable year in question (or portion thereof) over (ii) in the case of any taxable year beginning prior to the Closing Date, the aggregate amount of assumed estimated tax payments that should have been made under Section 6654 of the Code prior to the Closing Date (based on the assumption that all of the owners are individual residents of New York, New York) and (B) with respect to any taxable year ending prior to the Closing Date, cash distributions to pay the assumed income tax liabilities of the direct or indirect equity owners of Parent in respect of the income of Parent for such taxable year, in an aggregate amount equal to the product of (i) any additional taxable income of Parent (calculated in a manner consistent with the calculation in clause (A) above) for such taxable year resulting from a tax audit adjustment made after the Closing Date and (ii) the highest combined marginal federal and applicable state and/or local income tax rate (taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes and the character of the taxable income in question (i.e., long term capital gain, qualified income, etc.)) applicable to an individual United States citizen residing in New York, New York for the taxable year in question,

 

(2)                                 with respect to any taxable period for which Parent or any of its Subsidiaries is a member of a consolidated, combined or similar income, franchise or other state and/or local tax group of which Holdings or its direct or indirect parent is the common parent (a “Tax Group”), or for which Parent is a partnership or disregarded entity that is wholly owned (directly or indirectly) by a corporate parent (a “Corporate Parent”), cash distributions to pay the portion of the Tax Group’s or Corporate Parent’s actual cash income, franchise or other state and/or local tax liability attributable to Parent and/or its Subsidiaries, in an amount not to exceed the income, franchise or other state and/or local tax liability that would have been payable by Parent and/or such Subsidiaries if such entities had always been taxable on a stand-alone basis (reduced by any such income, franchise or other state and/or local taxes paid or to be paid directly by Parent or its Subsidiaries), and

 

(3)                                 cash distributions to pay any taxes of Holdings not described in clause (1) or (2) above, provided that the aggregate payments pursuant to this clause (3) shall not exceed $250,000 per calendar year.

 

“Permitted Unsecured Priority Refinancing Debt” shall mean unsecured Indebtedness incurred by the Borrower in the form of one or more series of senior unsecured notes or senior unsecured loans incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in conversion of, or exchange for, or to extend, renew, replace or refinance, in whole or in part, Loans hereunder; provided that (a) such Indebtedness is not guaranteed by any Person that is not a Loan Party, (b) the terms of such Indebtedness, as compared to the Loans being extended, renewed, replaced or refinanced, are not materially less favorable, in the aggregate, to the Loan Parties, the Restricted Subsidiaries and the Lenders, (c) the proceeds of such Indebtedness are applied immediately upon incurrence to refinance the Loans being refinanced, (d) such extending, renewing or refinancing Indebtedness is in an original aggregate principal amount not greater than the aggregate principal amount of the Loans being refinanced plus unpaid accrued interest and premium thereon, any committed or undrawn and other reasonable amounts paid and underwriting discounts,

 

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fees, commissions and expenses associated with such Refinancing Indebtedness, except as otherwise permitted under Section 6.01 and, if applicable, Section 6.02 (so long as such additional amounts are deemed utilization of the applicable basket under Section 6.01 and, if applicable, 6.02, and not the Permitted Unsecured Priority Refinancing Debt exception), (e) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days after the Latest Maturity Date (determined immediately prior to the time such Indebtedness is incurred) and (f) such Indebtedness is not secured by any Lien or any property or assets of any Loan Party.

 

“Person” shall mean any natural person, corporation, business trust, joint venture, association, company, limited liability company, partnership, Governmental Authority or other entity.

 

“Plan” shall mean any employee benefit plan (as such term is defined in Section 3(3) of ERISA) maintained or established by Borrower.

 

“Plan of Liquidation” shall mean, with respect to any Person, a plan that provides for, contemplates or the effectuation of which is preceded or accompanied by (whether or not substantially contemporaneously, in phases or otherwise): (1) the sale, lease, conveyance or other disposition of all or substantially all of the assets of such Person; and (2) the distribution of all or substantially all of the proceeds of such sale, lease, conveyance or other disposition of all or substantially all of the remaining assets of such Person to holders of Equity Interests of such Person.

 

“Platform” shall have the meaning assigned to such term in Section 9.01.

 

“Pledge Agreement” shall mean the Pledge Agreement, substantially in the form of Exhibit D-2, among Holdings, Parent, the Borrower, the Subsidiaries party thereto and the Collateral Agent for the benefit of the Secured Parties.

 

“Pledged Capital Stock” shall have the meaning assigned to such term in the Pledge Agreement.

 

“Prepayment Premium” shall mean:

 

(i)                             with respect to Closing Date Loans, in connection with (a) any voluntary prepayment of Closing Date Loans pursuant to Section 2.12, (b) any mandatory prepayment of Closing Date Loans pursuant to Section 2.13(c), (c) any mandatory assignment of Closing Date Loans pursuant to Section 2.21 or (d) an acceleration of the Closing Date Loans pursuant to Section 7.01, a premium (expressed as a percentage of the principal amount of such Closing Date Loans to be prepaid) equal to:

 

(A)                       on or before the first anniversary of the Closing Date, 2%;

 

(B)                       after the first anniversary of the Closing Date but on or before the second anniversary of the Closing Date, 1%; and

 

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(C)                       thereafter, 0%.

 

(ii)                          with respect to Incremental Loans, the prepayment premium specified in the applicable Incremental Facility Amendment, if any.

 

“Prime Rate” shall mean the rate of interest per annum determined from time to time by Credit Suisse as its prime rate in effect at its principal office in New York City and notified to the Borrower. The prime rate is a rate set by Credit Suisse based upon various factors including Credit Suisse’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such rate.

 

“pro forma basis”, “pro forma effect” or “pro forma” means, with respect to any determination of the Total Leverage Ratio or any Pro Forma Transaction during any four consecutive fiscal quarter period, that such determination shall be made by giving pro forma effect to such Pro Forma Transaction and each Pro Forma Transaction that has occurred during such period or subsequent to the end of such period but prior to or simultaneously with the event for which the applicable calculation is made, in each case as if each such Pro Forma Transaction had been consummated on the first day of such period, based on historical results accounted for in accordance with GAAP and including, to the extent applicable, only those adjustments in respect of restructuring charges, cost savings and synergies in connection with a Pro Forma Transaction contemplated by the definition of Consolidated EBITDA.

 

“Pro Forma Transaction” shall mean any incurrence or repayment of Indebtedness, any Asset Sale, any Investment that results in a Person becoming a Restricted Subsidiary or an Unrestricted Subsidiary (including any Permitted Acquisition) or any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person, in each case whether by merger, consolidation, amalgamation or otherwise.

 

“Properly Contested” shall mean, with respect to any obligation of a Loan Party or a Restricted Subsidiary, (a) the obligation is subject to a bona fide dispute regarding amount or the Loan Party’s or a Restricted Subsidiary’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP; (d) non-payment during the pendency of such dispute could not have a Material Adverse Effect, nor result in forfeiture or sale of any Properties; (e) no Lien is imposed on assets of the Loan Party or a Restricted Subsidiary, unless bonded and stayed to the reasonable satisfaction of the Administrative Agent; and (f) if the obligation results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other judicial review.

 

“Property” shall mean any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

 

“Public Lender” shall have the meaning assigned to such term in Section 9.01.

 

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“Purchase Money Debt” shall mean (a) Indebtedness (other than the Obligations) for payment of any Capital Expenditures; (b) Capital Lease Obligations; (c) Indebtedness (other than the Obligations) incurred within one year of any Capital Expenditure, for the purpose of financing any of the purchase price thereof; and (d) any renewals, extensions or refinancings (but not increases) thereof.

 

“Purchase Money Lien” shall mean a Lien that secures Purchase Money Debt, encumbering only the fixed assets acquired with such Indebtedness and the products and proceeds thereof and constituting a capital lease or a purchase money security interest under the UCC.

 

“Purchasing Borrower Party” shall mean Holdings, the Parent, the Borrower or any Restricted Subsidiary that becomes an Eligible Assignee or a Participant pursuant to Section 9.04.

 

“Qualified Capital Stock” of any Person shall mean any Equity Interest of such Person 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 (whether alone or in connection with a secondary public offering).

 

“Qualifying IPO Issuer” means Holdings or a corporation or other legal entity which owns, directly or indirectly, 100% of the outstanding Equity Interests of Holdings.

 

“RCRA” shall mean the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.).

 

“Real Estate” shall mean all right, title and interest (whether as owner, lessor, lessee or otherwise) in any real Property or any buildings, structures, parking areas or other improvements thereon.

 

“Recipient” means (a) the Administrative Agent or (b) any Lender, as applicable.

 

“Redesignation” shall have the meaning assigned to such term in Section 5.11(d).

 

“Refinancing Conditions” shall mean the following conditions for Refinancing Debt: (a) such Refinancing Debt is in an aggregate principal amount that does not exceed the principal amount of the Indebtedness being extended, renewed or refinanced; (b) such Refinancing Debt has a final maturity no sooner than, and a Weighted Average Life to Maturity no less than, the Indebtedness being extended, renewed or refinanced; (c) if the Indebtedness being extended renewed or refinanced is subordinated to the Obligations, such Refinancing Debt is subordinated to the Obligations on terms no less favorable to the Lenders as the Indebtedness being extended, renewed or refinanced; (d) if such Refinancing Debt is secured by a Lien on the Collateral, such Lien shall not have priority more senior than the Liens securing the Indebtedness that is being refinanced by such

 

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Refinancing Debt; (e) no additional Person is an obligor on such Indebtedness; (f) in the case of Refinancing Debt in respect of the Revolving Credit Facility, such Refinancing Debt does not contain terms that would not have been permitted to be made pursuant to any waiver, supplement, modification or amendment to the Revolving Credit Facility under Section 6.11(c) and (g) other than in the case of Refinancing Debt in respect of the Revolving Credit Facility, the terms of such Refinancing Debt, as compared to the Indebtedness being extended, renewed or refinanced are not materially less favorable, in the aggregate, to the Loan Parties, the Restricted Subsidiaries and the Lenders as compared to the Indebtedness being extended, renewed or refinanced (other than (i) subject to foregoing clauses (a) through (f) above, with respect to interest rates, fees, funding discounts, liquidation preferences, premiums, no call periods, subordination terms and optional prepayment and optional redemption provisions, and (ii) terms applicable only after the then Latest Maturity Date (as determined on the date of incurrence of such Refinancing Debt)).

 

“Refinancing Debt” shall mean any Indebtedness issued in exchange for, or the net proceeds of which are used to replace, refinance, refund, renew, defease or extend (collectively, to “Refinance”), in whole or in part, any Indebtedness being Refinanced, subject to the satisfaction of the Refinancing Conditions.

 

“Register” shall have the meaning assigned to such term in Section 9.04(d).

 

“Regulation T” shall mean Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

“Reinvestment Deferred Amount” shall mean with respect to any Reinvestment Event, the aggregate amount of Net Cash Proceeds received by any Loan Party or any Restricted Subsidiary in connection therewith that are not applied to prepay the Loans as a result of the delivery of a Reinvestment Notice.

 

“Reinvestment Event” shall mean any Asset Sale in respect of which the Borrower has delivered a Reinvestment Notice.

 

“Reinvestment Notice” shall mean a written notice executed by a Financial Officer stating that no Event of Default has occurred and is continuing and that a Loan Party (or a Restricted Subsidiary) intends and expects to use all or a portion of the amount of Net Cash Proceeds of an Asset Sale to restore, rebuild, repair, construct, improve, replace or otherwise acquire assets (including Equity Interests of Persons owning such assets) useful in its or such Restricted Subsidiary’s business.

 

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“Reinvestment Period” shall mean the period commencing on the date on which any Loan Party or any of its Restricted Subsidiaries receives Net Cash Proceeds from an Asset Sale and ending on the date that is 365 days thereafter; provided that such 365-day period may be extended by an additional 180 days if the applicable Loan Party or Restricted Subsidiary thereof enters into a binding agreement within such original 365-day time frame to restore, rebuild, repair, construct, improve, replace or otherwise acquire assets (including Equity Interests of Persons owning such assets) useful in its or such Restricted Subsidiary’s business and such reinvestment shall not be complete within the original 365-day time frame.

 

“Related Fund” shall mean, with respect to any Lender that is a fund or commingled investment vehicle that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

 

“Related Parties” shall mean, with respect to any specified Person, (a) a Controlling Person or Controlled Affiliate of such Person, (b) the respective directors, officers or employees of such Person or any of its Controlling Persons or Controlled Affiliates and (c) the respective agents of such Person or any of its Controlling Persons or Controlled Affiliates, in the case of this clause (c), acting at the instructions of such Person, Controlling Person or Controlled Affiliates.

 

“Rental Fleet and Equipment” means Inventory which is of a type offered for sale or lease by any Loan Party or any Restricted Subsidiary in the Ordinary Course of Business of any Loan Party or Restricted Subsidiary, including Inventory of any Loan Party or Restricted Subsidiary currently described as “rental equipment, net”.

 

“Repayment Date” shall have the meaning given such term in Section 2.11(a).

 

“Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

 

“Required Lenders” shall mean, at any time, Lenders holding Loans representing more than 50% of the sum of all Loans outstanding at such time; provided the Loans of any Defaulting Lender shall be disregarded in the determination of the Required Lenders at any time.

 

“Resignation Effective Date” shall have the meaning given to such term in Article VIII.

 

“Responsible Officer” of any Person shall mean any executive officer or Financial Officer of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement.

 

“Restricted Payment” shall mean any dividend or other distribution (whether in cash, securities or other property (other than Qualified Capital Stock of Holdings)) with

 

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respect to any Equity Interests in any Loan Party or any Restricted Subsidiary, or any payment (whether in cash, securities or other property (other than Qualified Capital Stock of Holdings)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in any Loan Party or any Restricted Subsidiary.

 

“Restricted Subsidiary” shall mean any Subsidiary that is not an Unrestricted Subsidiary.

 

“Restrictive Agreement” an agreement (other than a Loan Document) that conditions or restricts the right of any Loan Party or a Restricted Subsidiary to incur or repay Indebtedness, to grant Liens on any assets (except for agreements governing Purchase Money Debt so long as such restriction applies only to the ability to grant a Lien on the asset being financed with such Purchase Money Debt), to declare or make Restricted Payments, to modify, extend or renew any agreement evidencing Indebtedness, or to repay any intercompany Indebtedness.

 

“Revolving Agent” shall mean Bank of America, N.A. in its capacity as administrative agent and collateral agent under the Revolving Credit Facility Documentation, or any successor administrative agent, collateral agent and/or trustee under the Revolving Credit Facility Documentation.

 

“Revolving Credit Facility” shall mean (a) that certain Amended and Restated Senior Secured Credit Agreement, dated as of October 1, 2010, as amended and restated as of November 20, 2013, by and among Holdings, the Parent, the Borrower, the subsidiary guarantors party thereto from time to time, the lenders party thereto from time to time and Revolving Agent, as agent, as amended, restated, amended and restated, modified or renewed from time to time and (b) any Refinancing Debt in the form of one or more credit agreements, indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, subject to the satisfaction of the Refinancing Conditions.

 

“Revolving Credit Facility Documentation” shall mean the Revolving Credit Facility and all security agreements, guarantees, pledge agreements and other agreements or instruments executed in connection therewith.

 

“S&P” shall mean Standard & Poor’s Ratings Service, or any successor thereto.

 

“Secured Parties” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.

 

“Securities Act” shall mean the Securities Act of 1933, as amended.

 

“Security Documents” shall mean the Guarantee and Collateral Agreement, the Pledge Agreement and each of the security agreements, mortgages and other instruments

 

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and documents executed and delivered pursuant to the foregoing or pursuant to Section 5.10 or Section 5.12.

 

“Senior Representative” shall mean, with respect to any series of Permitted Pari Passu Priority Refinancing Debt or Permitted Junior Priority Refinancing Debt, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

 

“Sponsor” shall mean Wayzata Investment Partners, LLC and its Affiliates.

 

“Solvent” shall mean, 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 reasonably be expected to become an actual or matured liability.

 

“Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation D of the Board) and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

“Subordinated Debt” shall mean Indebtedness incurred by a Loan Party that is expressly subordinated to the Obligations, and is otherwise on terms (including maturity, interest, fees, repayment, covenants and subordination) reasonably satisfactory to Administrative Agent.

 

“subsidiary” shall mean, with respect to any Person (herein referred to as the “parent”), any corporation, partnership, limited liability company, association or other

 

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business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, Controlled or held, or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

“Subsidiary” shall mean any subsidiary of the Borrower.

 

“Synthetic Lease” shall mean, as to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.

 

“Synthetic Lease Obligations” shall mean, as to any Person, an amount equal to the capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a balance sheet of such person in accordance with GAAP if such obligations were accounted for as Capital Lease Obligations.

 

“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

“Total Debt” shall mean, at any time, the total Indebtedness of Parent, the Borrower and the Restricted Subsidiaries at such time (excluding Indebtedness of the type described in clause (d), clause (i), clause (j), clause (k) and clause (l) of the definition of such term, except, in the case of such clause (l), to the extent of any unreimbursed drawings thereunder).

 

“Total Leverage Ratio” shall mean, on any date, the ratio of (i) Total Debt on such date to (ii) Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such date.

 

“tranche” shall have the meaning assigned to such term in Section 2.22(a).

 

“Transactions” shall mean, collectively, (a) execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party and the making of Borrowings hereunder, (b) the redemption of the Existing Notes, (c) the 2014 Distribution and the payment of cash bonuses and other compensation to members of management and/or board of managers in connection with the Closing Date, (d) the amendment of the Revolving Credit Facility in form and substance reasonably satisfactory to the Administrative Agent and (e) the payment of related fees and expenses.

 

“2014 Distribution” shall have the meaning assigned to such term in the introductory statement to this Agreement.

 

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“Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall mean the Adjusted LIBO Rate and the Alternate Base Rate.

 

“UCC” shall mean the Uniform Commercial Code in effect in the State of New York from time to time.

 

“Unfunded Pension Liability” shall mean the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

 

“Unrestricted Subsidiary” shall mean (1) as of the Closing Date, Neff Rental Finance Corp. until the earlier to occur of (a) the dissolution, liquidation or winding down of Neff Rental Finance Corp. and (b) 45 days after the Closing Date, (2) after the Closing Date, any other Subsidiary of the Borrower that at the time of determination shall be designated an Unrestricted Subsidiary by the board of directors of the Borrower in accordance with Section 5.11 and (3) any Subsidiary of an Unrestricted Subsidiary.

 

“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

 

“U.S. Tax Compliance Certificate” shall have the meaning assigned to such term in paragraph (f) of Section 2.20.

 

“USA PATRIOT Act” shall mean the USA PATRIOT Improvement and Reauthorization Act, Pub. L. 109-177 (signed into law March 9, 2006).

 

“Voting Stock” shall mean, with respect to any Person, any class or classes of Equity Interests pursuant to which the holders thereof have the general voting power on a fully diluted basis to elect at least a majority of the Board of Directors of such Person.

 

“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal (excluding nominal amortization), including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

 

“Wholly Owned Restricted Subsidiary” of any Person shall mean a Restricted Subsidiary of such Person of which securities (except for directors’ qualifying shares) or other ownership interests representing 100% of the Equity Interests are, at the time any determination is being made, owned, Controlled or held by such Person or one or more

 

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wholly owned Restricted Subsidiaries of such Person or by such Person and one or more wholly owned Restricted Subsidiaries of such Person.

 

“Withholding Agent” means any Loan Party and the Administrative Agent.

 

Section 1.02.                          Terms Generally. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”; and the words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, (a) any reference in this Agreement to any Loan Document shall mean such document as amended, restated, supplemented or otherwise modified from time to time, in each case, to the extent not prohibited by this Agreement, (b) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time and (c) all terms of an accounting or financial nature shall be construed in accordance with GAAP as in effect on the Closing Date; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower wishes to amend any provision of this Agreement or any related definition to adopt or implement the effect of any change in GAAP occurring after the Closing Date on the operation of such provision, then the Borrower’s compliance with such provision shall be determined on the basis of GAAP in effect immediately after the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required Lenders. Notwithstanding any other provision of this Agreement to the contrary, for all purposes during the term of this Agreement and any other Loan Document, each lease that pursuant to GAAP as in effect on the Closing Date would be classified as a capital lease or an operating lease will continue to be so classified, notwithstanding any change in characterization of that lease subsequent to the Closing Date based on changes to GAAP or interpretation of GAAP.

 

Section 1.03.                          Pro Forma Calculations. All pro forma calculations of the Total Leverage Ratio hereunder shall be adjusted on a pro forma basis, to include or exclude, as the case may be, without duplication, components of such calculations attributable to any Pro Forma Transaction consummated after the first day of the applicable period of determination and prior to or concurrently with the time of such determination.

 

Section 1.04.                          Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Closing Date Loan” or “Incremental Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Incremental Loan”). Borrowings also may be classified and referred to by

 

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Class (e.g., a “Incremental Loan Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Incremental Loan Borrowing”).

 

ARTICLE 2

THE CREDITS

 

Section 2.01.                          Commitments.

 

(a)                                     Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Lender agrees, severally and not jointly, to make a Loan to the Borrower on the Closing Date (each, a “Closing Date Loan”) in a principal amount not to exceed its Closing Date Commitment. Amounts paid or prepaid in respect of Loans may not be reborrowed.

 

(b)                                     Each Lender having an Incremental Commitment, severally and not jointly, hereby agrees, subject to the terms and conditions and relying upon the representations and warranties set forth herein and in the applicable Incremental Facility Amendment, to make Incremental Loans to the Borrower, in an aggregate principal amount not to exceed its Incremental Commitment. Amounts paid or prepaid in respect of Incremental Loans may not be reborrowed.

 

Section 2.02.                          Loans. (a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their respective Commitments; provided, however, that the failure of any Lender to make any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender).

 

(b)                                     Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time; provided, however, that the Borrower shall not be entitled to request any Borrowing that, if made, would result in more than seven Eurodollar Borrowings outstanding hereunder at any time. For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.

 

(c)                                      Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account in New York City as the Administrative Agent may designate not later than 1:00 p.m., New York City time, and the Administrative Agent shall promptly credit the amounts so received to an account designated by the Borrower in the Borrowing Request or, if a Borrowing shall not occur on the Closing Date because any condition precedent herein

 

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specified shall not have been met, return the amounts so received to the respective Lenders.

 

(d)                                     Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on such date in accordance with paragraph (c) above and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is available to but excluding the date such amount is repaid to the Administrative Agent at (i) in the case of the Borrower, a rate per annum equal to the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, a rate determined by the Administrative Agent to represent its cost of overnight or short-term funds (which determination shall be conclusive absent manifest error). If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement.

 

(e)                                      Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to elect to convert or continue any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.

 

Section 2.03.                          Borrowing Procedure. In order to request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three Business Days before a proposed Borrowing, and (b) in the case of an ABR Borrowing, not later than 1:00 p.m., New York City time, one Business Day before a proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable, and shall be confirmed promptly by hand delivery or fax to the Administrative Agent of a written Borrowing Request and shall specify the following information: (i) whether such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be a Business Day); (iii) the number and location of the account to which funds are to be disbursed; (iv) the amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect thereto; provided, however, that, notwithstanding any contrary specification in any Borrowing Request, each requested Borrowing shall comply with the requirements set forth in Section 2.02. If no election as to the Type of Borrowing is specified in any such notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is specified in any such notice, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall promptly advise the applicable Lenders of any notice given pursuant to this Section 2.03 (and the contents thereof), and of each Lender’s portion of the requested Borrowing.

 

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Section 2.04.                          Evidence of Debt; Repayment of Loans. (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the principal amount of each Loan of such Lender as provided in Section 2.11.

 

(b)                                     Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

 

(c)                                      The Administrative Agent shall, in accordance with its customary practice, maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type thereof and, if applicable, the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower or any Guarantor and each Lender’s share thereof.

 

(d)                                     The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans in accordance with their terms.

 

(e)                                      Any Lender may request that Loans made by it hereunder be evidenced by a promissory note. In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns and in a form and substance reasonably acceptable to the Administrative Agent and the Borrower. Notwithstanding any other provision of this Agreement, in the event any Lender shall request and receive such a promissory note, the interests represented by such note shall at all times (including after any assignment of all or part of such interests pursuant to Section 9.04) be represented by one or more promissory notes payable to the payee named therein or its registered assigns.

 

Section 2.05.                          Fees. The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent (the “Fees”). Once paid, fees shall not be refundable under any circumstances.

 

Section 2.06.                          Interest on Loans. (a) Subject to the provisions of Section 2.07, the Loans comprising each ABR Borrowing, shall bear interest at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.

 

(b)                                     Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.

 

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(c)                                  Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 2.07 shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

 

(d)                                 All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent in accordance with the provisions of this Agreement and such determination shall be conclusive absent manifest error.

 

Section 2.07.                          Default Interest. If the Borrower shall default in the payment of any principal of or interest on any Loan or any other amount due hereunder or under any other Loan Document, by acceleration or otherwise, until such defaulted amount shall have been paid in full, to the extent permitted by law, all overdue amounts under this Agreement and the other Loan Documents shall bear interest (after as well as before judgment), payable on demand, (a) in the case of principal, at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum and (b) in all other cases, at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be) equal to the rate that would be applicable to an ABR Loan plus 2.00% per annum.

 

Section 2.08.                          Alternate Rate of Interest. In the event, and on each occasion, that on the day two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing the Administrative Agent shall have determined that Dollar deposits in the principal amounts of the Loans comprising such Borrowing are not generally available in the London interbank market, or that the rates at which such Dollar deposits are being offered will not adequately and fairly reflect the cost to the majority of Lenders of making or maintaining Eurodollar Loans during such Interest Period, or that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as practicable thereafter, give written or fax notice of such determination to the Borrower and the Lenders. In the event of any such determination, until the Administrative Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, any request by the Borrower for a Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each determination by the Administrative Agent under this Section 2.08 shall be conclusive absent manifest error.

 

Section 2.09.                          Termination and Reduction of Commitments. The Closing Date Commitments shall automatically terminate upon the making of the Closing Date Loans. The Incremental Commitments shall terminate as provided in the related Incremental Facility Amendment.

 

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Section 2.10.                          Conversion and Continuation of Borrowings. The Borrower shall have the right at any time upon prior irrevocable written notice to the Administrative Agent (a) not later than 1:00 p.m., New York City time, one Business Day prior to conversion, to convert any Eurodollar Borrowing into an ABR Borrowing, (b) not later than 1:00 p.m. New York City time, three Business Days prior to conversion or continuation, to convert any ABR Borrowing into a Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest Period, and (c) not later than 1:00 p.m, New York City time, three Business Days prior to conversion, to convert the Interest Period with respect to any Eurodollar Borrowing to another permissible Interest Period, subject in each case to the following:

 

(i)                               [reserved];

 

(ii)                            each conversion or continuation shall be made pro rata among the Lenders in accordance with the respective principal amounts of the Loans comprising the converted or continued Borrowing;

 

(iii)                         if less than all the outstanding principal amount of any Borrowing shall be converted or continued, then each resulting Borrowing shall be in an aggregate principal amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided the Borrower shall not be entitled to convert or continue any Borrowing that, if made, would result in more than seven Eurodollar Borrowings outstanding hereunder at any time;

 

(iv)                        each conversion shall be effected by each Lender and the Administrative Agent by recording for the account of such Lender the new Loan of such Lender resulting from such conversion and reducing the Loan (or portion thereof) of such Lender being converted by an equivalent principal amount; accrued interest on any Eurodollar Loan (or portion thereof) being converted shall be paid by the Borrower at the time of conversion;

 

(v)                           if any Eurodollar Borrowing is converted at a time other than the end of the Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to the Lenders pursuant to Section 2.16;

 

(vi)                        any portion of a Borrowing maturing or required to be repaid in less than one month may not be converted into or continued as a Eurodollar Borrowing;

 

(vii)                     any portion of a Eurodollar Borrowing that cannot be converted into or continued as a Eurodollar Borrowing by reason of the immediately preceding clause (vi) shall be automatically converted at the end of the Interest Period in effect for such Borrowing into an ABR Borrowing;

 

(viii)                  no Interest Period may be selected for any Eurodollar Borrowing that would end later than a Repayment Date occurring on or after the first day of such Interest Period if, after giving effect to such selection, the aggregate

 

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outstanding amount of (A) the Eurodollar Borrowings with Interest Periods ending on or prior to such Repayment Date and (B) the ABR Borrowings would not be at least equal to the principal amount of Borrowings to be paid on such Repayment Date; and

 

(ix)                        upon notice to the Borrower from the Administrative Agent given at the request of the Required Lenders, after the occurrence and during the continuance of an Event of Default, no outstanding Loan may be converted into, or continued as, a Eurodollar Loan.

 

Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this Agreement and specify (i) the identity and amount of the Borrowing that the Borrower requests be converted or continued, (ii) whether such Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the date of such conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to or continued as a Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest Period is specified in any such notice with respect to any conversion to or continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall promptly advise the Lenders of any notice given pursuant to this Section 2.10 and of each Lender’s portion of any converted or continued Borrowing. If the Borrower shall not have given notice in accordance with this Section 2.10 to continue any Borrowing into a subsequent Interest Period (and shall not otherwise have given notice in accordance with this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the Interest Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be converted into an ABR Borrowing.

 

Section 2.11.                          Repayment of Borrowings. (a) The Borrower shall pay to the Administrative Agent, for the account of the Lenders, on the Maturity Date (or if any such date is not a Business Day, on the next preceding Business Day) the full principal amount of the Loan not paid prior to such date.

 

(b)                                     The Borrower shall pay to the Administrative Agent, for the account of the Incremental Lenders, on each date specified in the applicable Incremental Facility Amendment, the amount set forth therein for such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment

 

Section 2.12.                          Voluntary Prepayment. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, upon at least three Business Days’ prior written or fax notice (or telephone notice promptly confirmed by written or fax notice) in the case of Eurodollar Loans, or written or fax notice (or telephone notice promptly confirmed by written or fax notice) at least one Business Day prior to the date of prepayment in the case of ABR Loans, to the Administrative Agent before 1:00 p.m., New York City time; provided, however, that each partial prepayment shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 (or such lesser amount as may remain outstanding).

 

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(b)                                     [Reserved].

 

(c)                                      Each notice of prepayment shall specify the prepayment date and the principal amount of each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such Borrowing by the amount stated therein on the date stated therein; provided, however, that if such prepayment is for all of the then outstanding Loans, then (x) upon written notice to the Administrative Agent not later than 12:00 (noon), New York City time, on the date of such prepayment, the Borrower may revoke such notice and/or extend the prepayment date by not more than five Business Days and (y) such prepayments may be conditioned upon the effectiveness or consummation of other financing; provided further, however, that the provisions of Section 2.16 shall apply with respect to any such revocation or extension. All prepayments under this Section 2.12 shall be subject to Section 2.16.

 

(d)                                     All prepayments under this Section 2.12 shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment plus the applicable Prepayment Premium.

 

Section 2.13.                          Mandatory Prepayments.

 

(a)                                     Not later than the tenth Business Day following the receipt by any Loan Party or Restricted Subsidiary of Net Cash Proceeds in respect of any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Loans in accordance with Section 2.13(e).

 

(b)                                     No later than 15 days following the date on which the financial statements with respect to such period are delivered pursuant to Section 5.04(a), the Borrower shall prepay outstanding Loans in accordance with Section 2.13(e) in an aggregate principal amount equal to (A) (i) if the Total Leverage Ratio for such Excess Cash Flow Period is greater than 4.00 to 1.00, 50% of Excess Cash Flow for the Excess Cash Flow Period then ended, (ii) if the Total Leverage Ratio for such Excess Cash Flow Period is equal to or less than 4.00 to 1.00 but greater than 3.00 to 1.00, 25% of Excess Cash Flow for the Excess Cash Flow Period then ended or (iii) if the Total Leverage Ratio for such Excess Cash Flow Period is equal to or less than 3.00 to 1.00, 0% of Excess Cash Flow for the Excess Cash Flow Period then ended over (B) the Optional Prepayment Amount for such Excess Cash Flow Period; provided, further that if on the date of such prepayment the Liquidity Conditions would not be satisfied immediately after giving effect to such prepayment, the amount of the prepayment to be made on such date shall be reduced to the maximum amount (which shall not be less than zero) that would result in the Liquidity Conditions being satisfied, and the remaining amount of such prepayment shall not be due and payable on such date but shall be deferred (without penalty) until the next succeeding Business Day on which the Liquidity Conditions would be satisfied immediately after giving effect to such prepayment amount.

 

(c)                                      In the event that any Loan Party or a Restricted Subsidiary shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness (other than any cash proceeds from the issuance of Indebtedness permitted pursuant to Section 6.01, except for

 

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Permitted Pari Passu Priority Refinancing Debt, Permitted Junior Priority Refinancing Debt and Permitted Unsecured Refinancing Debt), the Borrower shall, substantially simultaneously with the receipt of such Net Cash Proceeds by such Loan Party or such Restricted Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds plus the applicable Prepayment Premium to prepay outstanding Loans in accordance with Section 2.13(e).

 

(d)                                     [reserved]

 

(e)                                      Mandatory prepayments of outstanding Loans under this Agreement shall be allocated pro rata between the Closing Date Loans and Incremental Loans (unless the applicable Incremental Facility Amendment specifies less favorable treatment for the Incremental Loans).

 

(f)                                       Except as otherwise provided herein, the Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent reasonably practicable, at least three Business Days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty (except for any applicable Prepayment Premium with respect to mandatory prepayments pursuant to Section 2.13(c)) and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.

 

Section 2.14.                          Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision of this Agreement, if any Change in Law shall:

 

(i)                             impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender (except any such reserve requirement which is reflected in the Adjusted LIBO Rate);

 

(ii)                            subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes” and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iii)                             impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender;

 

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of

 

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maintaining its obligation to make such Loan, or to increase the cost to such Lender, or to reduce the amount of any sum received or receivable by such Lender or such other Recipient, (whether of principal, interest or otherwise), then the Borrower will pay to such Lender or such other Recipient, as the case may be, upon demand such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

 

(b)                                     If any Lender shall have determined that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made pursuant hereto to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower shall pay to such Lender, such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

 

(c)                                      A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as applicable, as specified in paragraph (a) or (b) of this Section 2.14 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.

 

(d)                                     Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender under paragraph (a) or (b) of this Section 2.14 for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation thereof (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof). The protection of this Section 2.14 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.

 

Section 2.15.                          Change in Legality. (a) Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan, then, by written notice to the Borrower and to the Administrative Agent:

 

(i)                             such Lender may declare that Eurodollar Loans will not thereafter (for the duration of such unlawfulness) be made by such Lender hereunder (or be continued for additional Interest Periods) and ABR Loans will not thereafter (for such duration) be converted into Eurodollar Loans, whereupon any request for a

 

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Eurodollar Borrowing (or to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for an additional Interest Period) shall, as to such Lender only, be deemed a request for an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such declaration shall be subsequently withdrawn; and

 

(ii)                          such Lender may require that all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR Loans as of the effective date of such notice as provided in paragraph (b) below.

 

In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion of, such Eurodollar Loans.

 

(b)                                     For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date of receipt by the Borrower.

 

Section 2.16.                          Breakage. The Borrower shall indemnify each Lender against any loss or expense that such Lender may sustain or incur as a consequence of (a) any event, other than a default by such Lender in the performance of its obligations hereunder, which results in (i) such Lender receiving or being deemed to receive any amount on account of the principal of any Eurodollar Loan prior to the end of the Interest Period in effect therefor, (ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period with respect to any Eurodollar Loan, in each case other than on the last day of the Interest Period in effect therefor, or (iii) any Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be made pursuant to a conversion or continuation under Section 2.10) not being made after notice of such Loan shall have been given by the Borrower hereunder (any of the events referred to in this clause (a) being called a “Breakage Event”) or (b) any default in the making of any payment or prepayment required to be made hereunder. In the case of any Breakage Event, such loss shall include an amount equal to the excess, as reasonably determined by such Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that is the subject of such Breakage Event for the period from the date of such Breakage Event to the last day of the Interest Period in effect (or that would have been in effect) for such Loan over (ii) the amount of interest likely to be realized by such Lender in redeploying the funds released or not utilized by reason of such Breakage Event for such period. A certificate of any Lender setting forth any amount or amounts which such Lender is entitled to receive pursuant to this Section 2.16 shall be delivered to the Borrower and shall be conclusive absent manifest error.

 

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Section 2.17.                          Pro Rata Treatment. Except as otherwise expressly provided herein, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated pro rata among the Lenders in accordance with the respective principal amounts of their outstanding Loans (based on the respective outstanding principal amounts thereof unless, in the case of Incremental Loans, the applicable Incremental Facility Amendment specifies a less favorable treatment). Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole Dollar amount.

 

Section 2.18.                          Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any Debtor Relief Law or otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of any Loan or Loans as a result of which the unpaid principal portion of its Loans shall be proportionately less than the unpaid principal portion of the Loans of any other Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value, and shall promptly pay to such other Lender the purchase price for, a participation in the Loans of such other Lender, so that the aggregate unpaid principal amount of the Loans and participations in Loans held by each Lender shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding as the principal amount of its Loans prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the principal amount of all Loans outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event; provided, however, that (i) if any such purchase or purchases or adjustments shall be made pursuant to this Section 2.18 and the payment giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest, and (ii) the provisions of this Section 2.18 shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this Section 2.18 shall apply, except in connection with any assignment to an Affiliated Lender that complies with Section 9.04(k) or to a Purchasing Borrower Party that complies with Section 9.04(m)). The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding a participation in a Loan deemed to have been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender by reason thereof as fully as if such Lender had made a Loan directly to the Borrower in the amount of such participation.

 

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Section 2.19.                          Payments. (a) The Borrower shall make each payment (including principal of or interest on any Borrowing or any fees or other amounts) hereunder and under any other Loan Document not later than 12:00 (noon), New York City time, on the date when due in immediately available Dollars, without setoff, defense or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for the purpose of calculating interest thereon. Each such payment shall be made to the Administrative Agent at its offices at Eleven Madison Avenue, New York, NY 10010. The Administrative Agent shall promptly distribute to each Lender any payments received by the Administrative Agent on behalf of such Lender.

 

(b)                                     Except as otherwise expressly provided herein, whenever any payment (including principal of or interest on any Borrowing or any fees or other amounts) hereunder or under any other Loan Document shall become due, or otherwise would occur, on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or fees, if applicable.

 

Section 2.20.                          Taxes.

 

(a)                                     Any and all payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with the applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings of Indemnified Taxes applicable to additional sums payable under this Section 2.20) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(b)                                     The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes; provided, however, that the Loan Parties shall not be required to pay any Other Taxes imposed solely by reason of any transfer or assignment of, or any participation in, any Commitment, Loan, promissory note evidencing a Loan, this Agreement or any Loan Document (or any portion of any of the foregoing) by any Lender or any direct or indirect assignee or participant of a Lender (other than any such transfer or assignment made at the request of Borrower pursuant to Section 2.21).

 

(c)                                      The Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after written demand therefor, for the full amount of any Indemnified

 

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Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.20) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

(d)                                     Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(f) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).

 

(e)                                      As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.20, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(f)                                       (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding sentence, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.20(f)(ii)(A), 2.20(f)(ii)(B) and (ii)(D) below) shall not be required if in the Lender’s

 

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reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

(ii)                          Without limiting the generality of the foregoing,

 

(A)                         any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

 

(B)                         any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable (using the latest versions of the applicable IRS forms):

 

(1)                            in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS W-8BEN-E, as applicable establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS W-8BEN-E, as applicable establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(2)                            executed originals of IRS Form W-8ECI;

 

(3)                            in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or IRS W-8BEN-E, as applicable; or

 

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(4)                            to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by any applicable “Withholding Statement” required by applicable law to be associated with the IRS Form W-8IMY, and IRS Form W-8ECI, IRS Form W-8BEN, W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;

 

(C)                         any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D)                         if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification

 

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or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

(iii)                               Administrative Agent shall be required to comply with this subsection 2.20(f) in the same manner as if the term “Lender” included the Administrative Agent. Further, to the extent any Person otherwise required to provide tax documentation under this subsection 2.20(f) is disregarded as an entity separate from is sole owner, as determined for U.S. federal income tax purposes, the sole owner of such entity (as determined for U.S. federal income tax purposes), in lieu of such Person, shall provide the tax documentation required under this subsection 2.20(f).

 

(g)                                      If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20 (including by the payment of additional amounts pursuant to this Section 2.20), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.20 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(h)                                     Each party’s obligations under this Section 2.20 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

(i)                                         For purposes of this Section 2.20, the term “applicable law” includes FATCA.

 

Section 2.21.                          Assignment of Commitments Under Certain Circumstances; Duty to Mitigate. (a) In the event (i) any Lender delivers a certificate requesting compensation pursuant to Section 2.14, (ii) any Lender delivers a notice described in Section 2.15, (iii) the Borrower is required to pay Indemnified Taxes or any additional amounts to any Lender or any Governmental Authority on account of any Lender pursuant to Section

 

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2.20, (iv) any Lender refuses to consent to any amendment, waiver or other modification of any Loan Document requested by the Borrower that requires the consent of a greater percentage of the Lenders than the Required Lenders and such amendment, waiver or other modification is consented to by the Required Lenders, (v) any Lender becomes a Defaulting Lender, or (vi) any Disqualified Institution becomes a Lender, then, in each case, the Borrower may, at its sole expense and effort (including with respect to the processing and recordation fee referred to in Section 9.04(b)), upon notice to such Lender and the Administrative Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.14 or Section 2.20) and obligations under this Agreement (or, in the case of clause (iv) above, all of its interests, rights and obligation with respect to the class of Loans or Commitments that is the subject of the related consent, amendment, waiver or other modification) to an Eligible Assignee (or, in the case of clause (vi) above, to Holdings, Parent, the Borrower or any Restricted Subsidiary) that shall assume such assigned obligations and, with respect to clause (iv) above, shall consent to such requested amendment, waiver or other modification of any Loan Documents (which assignee may be another Lender, if a Lender accepts such assignment); provided that ((w) in the case of any such assignment resulting from a claim for compensation under Section 2.14 or payments required to be made pursuant to Section 2.20, such assignment will result in a reduction in such compensation or payments thereafter, (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, (y) the Borrower shall have received the prior written consent of the Administrative Agent which consent shall not unreasonably be withheld or delayed, and (z) the Borrower or such assignee shall have paid to the affected Lender in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans of such Lender, plus all fees and other amounts accrued for the account of such Lender hereunder with respect thereto (including any amounts under Sections 2.14 and 2.16 and, if applicable, the Prepayment Premium (with such assignment being deemed to be a voluntary prepayment for purposes of determining the applicability of Section 2.12(d), such amount to be payable by the Borrower)); provided further that, if prior to any such transfer and assignment the circumstances or event that resulted in such Lender’s claim for compensation under Section 2.14, notice under Section 2.15 or Indemnified Taxes or the additional amounts paid pursuant to Section 2.20, as the case may be, cease to cause such Lender to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to have the consequences specified in Section 2.15, or cease to result in Indemnified Taxes or additional amounts being payable under Section 2.20, as the case may be (including as a result of any action taken by such Lender pursuant to paragraph (b) below), or if such Lender shall waive its right to claim further compensation under Section 2.14 in respect of such circumstances or event or shall withdraw its notice under Section 2.15 or shall waive its right to further payments under Section 2.20 in respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent or other modification, as the case may be, then such Lender shall not thereafter be required to make any such transfer and assignment

 

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hereunder; provided, further that any assignment to Holdings, Parent, the Borrower or any Restricted Subsidiary pursuant to clause (vi) above shall be repurchased at par and subject to Section 9.04(m) (other than Sections 9.04(m)(ii) and 9.04(m)(iii)). Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender, as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.21(a).

 

(b)                                     If (i) any Lender shall request compensation under Section 2.14, (ii) any Lender delivers a notice described in Section 2.15 or (iii) the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.20, then such Lender shall (at the request of the Borrower) use reasonable efforts (which shall not require such Lender to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden deemed by it to be significant) (x) to file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such filing or assignment would reduce its claims for compensation under Section 2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such filing or assignment, delegation and transfer.

 

Section 2.22.                          Extension of Loans. (a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of Loans with a like maturity date on a pro rata basis (based on the aggregate outstanding principal amount of the respective Loans with a like maturity date) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Loans and otherwise modify the terms of such Loans pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Loans and/or modifying the amortization schedule in respect of such Lender’s Loans (if any)) (each, an “Extension”, and each group of Loans as so extended, as well as the original Loans (not so extended), being a “tranche”; any Extended Loans shall constitute a separate tranche of Loans from the tranche of Loans from which they were converted), so long as the following terms are satisfied: (i) no Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders, (ii) except as to pricing (interest rate, fees, funding discounts and prepayment premiums), amortization, maturity, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iii), (iv) and (v), be set forth in the relevant Extension Offer), the Loans of any Lender that agrees to an Extension with respect to

 

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such Loans (an “Extending Lender”) extended pursuant to any Extension (“Extended Loans”) shall have the same terms as the tranche of Loans subject to such Extension Offer (except for covenants or other provisions contained therein applicable only to periods after the Latest Maturity Date of the Loans), (iii) the final maturity date of any Extended Loans shall be no earlier than the then Latest Maturity Date of the Loans, (iv) the Weighted Average Life to Maturity of any Extended Loans shall be no less than 91 days longer than the remaining Weighted Average Life to Maturity of non-extended Loans, (v) any Extended Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Extension Offer (provided that if the applicable Extending Lenders have the ability to decline mandatory prepayments, any such mandatory prepayment that is not accepted by the applicable Extending Lenders shall be applied, subject to the right of any applicable Lender to decline mandatory prepayments (if any), to the non-extended Loans of the tranche being extended), (vi) after giving effect to any tranche of Loans, there shall not be more than five tranches of Loans outstanding under this Agreement at any time (it being understood that, for purposes of this clause (vi), the Initial Loans, any tranche of Extended Loans and any tranche of Incremental Loans shall constitute separate and distinct tranches of Loans), (vii) if the aggregate principal amount of Loans (calculated on the face amount thereof) in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Loans offered to be extended by the Borrower pursuant to such Extension Offer, then the Loans of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer, (viii) all documentation in respect of such Extension shall be consistent with the foregoing and (ix) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower.

 

(b)                                     With respect to all Extensions consummated by the Borrower pursuant to this Section 2.22, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of this Agreement and (ii) each Extension Offer shall specify the minimum amount of Loans to be tendered, which shall be an integral multiple of $25,000,000 and an aggregate principal amount that is not less than $100,000,000 (or if less, the remaining outstanding principal amount thereof) (or such lesser minimum amount reasonably approved by the Administrative Agent) (a “Minimum Extension Condition”). The transactions contemplated by this Section 2.22 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Loans on the such terms as may be set forth in the relevant Extension Offer) shall not require the consent of any Lender or any other Person (other than as set forth in clause (c) below), and the requirements of any provision of this Agreement (including Sections 2.04 and 2.17 or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.22 shall not apply to any of the transactions effected pursuant to this Section 2.22.

 

(c)                                      The consent (such consent not to be unreasonably withheld, delayed or conditioned) of the Administrative Agent shall be required to effectuate any Extension.

 

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No consent of any Lender or any other Person shall be required to effectuate any Extension, other than the consent of the Borrower and each Lender agreeing to such Extension with respect to one or more of its Loans (or a portion thereof). All Extended Loans and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents (an “Extension Amendment”) with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or subtranches, in each case on terms consistent with this Section 2.22.

 

(d)                                     In connection with any Extension, the Borrower shall provide the Administrative Agent at least five Business Days (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.22.

 

Section 2.23.                          Defaulting Lenders. (a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

 

(i)                             Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders.

 

(ii)                          Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.06 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agents hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fourth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower

 

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against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans owed to, such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with their respective Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

(b)                                     If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with their respective Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

Section 2.24.                          Incremental Facilities.

 

(a)                                     At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more additional tranches of term loans (the “Incremental Loans” and each such tranche, an “Incremental Facility”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment (i) no Default or Event of Default has occurred and is continuing or shall result therefrom, (ii) the aggregate amount of Incremental Facilities plus the aggregate amount of Incremental Equivalent Debt shall not exceed the Incremental Cap. Each tranche of Incremental Loans shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000 (or in each case such lesser minimum amount reasonably approved by the Administrative Agent).

 

(b)                                     Any Incremental Loans (i) shall rank pari passu in right of payment and security with the Obligations in respect of the other outstanding Loans as set forth in the relevant Incremental Facility Amendment (which shall be reasonably satisfactory to the

 

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Administrative Agent), (ii) for purposes of prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than) the other outstanding Loans, (iii) other than amortization, maturity date and pricing (interest rate, fees, funding discounts and prepayment premiums which shall be set forth in the relevant Incremental Facility Amendment), shall have the same terms as the Closing Date Loans or such terms as are reasonably satisfactory to the Administrative Agent; provided that (A) if the effective yield (which, for such purpose only, shall be deemed to take account of interest rate margin and benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the Weighted Average Life to Maturity of such Incremental Loans and (2) four years) payable to all Lenders providing such Incremental Loans (but excluding any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Incremental Loans) on such Incremental Loans determined as of the initial funding date for such Incremental Loans exceeds the effective yield (determined on the same basis as the preceding parenthetical) on the Closing Date Loans or any then existing Incremental Loans, as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Closing Date Loans or such then existing Incremental Loans, as applicable, shall be adjusted in order that such effective yield on such Incremental Loans shall not exceed such effective yield on the Closing Date Loans and such then existing Incremental Loans by more than 0.50%, (B) any Incremental Loans shall not have a final maturity date earlier than the then Latest Maturity Date and (C) any Incremental Loans shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the later of the then remaining Closing Date Loans or then existing Incremental Loans, as applicable, (iv) after giving effect to such tranche of Incremental Loans, there shall not be more than five tranches of Loans outstanding under this Agreement at any time (it being understood that, for purposes of this clause (iv), the Initial Loans, any tranche of Extended Loans and any tranche of Incremental Loans shall constitute separate and distinct tranches of Loans) and (v) the Incremental Loans shall not be guaranteed by any Person that is not a Loan Party and shall not be secured by any asset that is not Collateral.

 

(c)                                      Each notice from the Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Any Additional Lenders that elect to extend Incremental Loans shall be reasonably satisfactory to the Borrower and (unless such Additional Lender is already a Lender or an Affiliate of a Lender) the Administrative Agent (in each case, any approval thereof not to be unreasonably withheld or delayed), and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender or Additional Lenders and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person other than the Borrower, the Administrative Agent and the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Loans,

 

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unless it so agrees. Commitments in respect of any Incremental Loans shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders or any other Person, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.24 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.08(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, be subject to the satisfaction or waiver on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to the date of making any extension of credit in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date). The proceeds of any Incremental Loans may be used for any general corporate purpose permitted hereunder. To the extent reasonably requested by the Administrative Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary legal opinions with respect thereto, board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01, with respect to the Borrower and the Restricted Subsidiaries. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the transactions effected pursuant to this Section 2.24.

 

ARTICLE 3

REPRESENTATIONS AND WARRANTIES

 

The Loan Parties represent and warrant to the Administrative Agent, the Collateral Agent and each of the Lenders that:

 

Section 3.01.                          Organization; Powers. Each Loan Party and each Restricted Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Each Loan Party and each Restricted Subsidiary is duly qualified, authorized to do business and in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect.

 

Section 3.02.                          Authorization. The Borrower and each other Loan Party is duly authorized to execute, deliver and perform the Loan Documents to which it is party. The execution, delivery and performance of the Loan Documents by the Borrower and each other Loan Party have been duly authorized by all necessary action, and do not (a) require any consent or approval of any holders of Equity Interests of the Borrower and such Loan Party, other than those already obtained; (b) contravene the certificate or articles of incorporation or other constitutive documents or by-laws or operating agreements of the Borrower and such Loan Party; (c) violate or cause a default under (i) any Applicable Law or (ii) Material Contract; or (d) result in or require the imposition of any Lien on any Collateral (other than Permitted Liens), except in the case of clauses (a), (c)(ii) and (d), as

 

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could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

 

Section 3.03.                          Enforceability. Each Loan Document is a legal, valid and binding obligation of each Loan Party party thereto, enforceable in accordance with its terms, except as enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally, by general principles of equity and by an implied covenant of good faith and fair dealing.

 

Section 3.04.                          Approvals. Each Loan Party and each Restricted Subsidiary has, is in compliance with, and is in good standing with respect to, all actions, consent or approvals of any Person or Governmental Authority necessary to conduct its business and to own, lease and operate its Properties, except as could not reasonably be expected to have a Material Adverse Effect.

 

Section 3.05.                          Financial Statements. The consolidated balance sheets, and related statements of operations, cash flow and members’ surplus, of the Loan Parties and the Restricted Subsidiaries that have been and are hereafter delivered to the Administrative Agent and the Lenders, are prepared in accordance with GAAP, and fairly present in all material respects the financial positions and results of operations of the Loan Parties and the Restricted Subsidiaries at the dates and for the periods indicated. Such balance sheets and the notes thereto disclose all material liabilities of the Loan Parties and the Restricted Subsidiaries as of the dates thereof in accordance with GAAP. Such financial statements were prepared in accordance with GAAP applied on a consistent basis, subject, in the case of unaudited financial statements, to year-end audit adjustments and the absence of footnotes.

 

Section 3.06.                          No Material Adverse Change. Since December 31, 2013, there has been no change in the condition, financial or otherwise, of any Loan Party or any Restricted Subsidiary that could reasonably be expected to have a Material Adverse Effect.

 

Section 3.07.                          Title to Properties; Possession Under Leases. (a) Each of the Loan Parties and each Restricted Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in, all its material properties and assets, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes. All such material properties and assets are free and clear of Liens, other than Permitted Liens.

 

(b)                                     Each of the Loan Parties and each Restricted Subsidiary is in compliance with all obligations under all Material Leases to which it is a party and all such leases are in full force and effect.

 

Section 3.08.                          Subsidiaries. Schedule 3.08 shows, for Holdings and each subsidiary of Holdings as of the Closing Date, its name, its jurisdiction of organization, its authorized and issued Equity Interests, and the holders of its Equity Interests, and all

 

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agreements binding on such holders with respect to their Equity Interests. Except as disclosed on Schedule 3.08, in the five years preceding the Closing Date, no Loan Party has operated under any prior name (including trade names) or been the surviving entity by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise. Each Loan Party and each Restricted Subsidiary has good title to its Equity Interests in its Subsidiaries and all such Equity Interests are duly issued, fully paid and non-assessable and are owned by Holdings, directly or indirectly, free and clear of all Liens (other than Liens created under the Security Documents). As of the Closing Date, all Subsidiaries of the Borrower are Restricted Subsidiaries, Holdings has no subsidiaries other than Parent and Parent has no subsidiaries other than the Borrower.

 

Section 3.09.                          Litigation; Compliance with Laws. Except as shown on Schedule 3.09, (a) there are no proceedings or investigations pending or, to any Loan Party’s knowledge, threatened against any Loan Party or any Restricted Subsidiary, or any of their businesses, operations or Properties that (i) directly relate to any Loan Documents or transactions contemplated thereby or (ii) could reasonably be expected to have a Material Adverse Effect and (b) there are no judgments outstanding against any Loan Party or any Restricted Subsidiary or affecting any property of any Loan party or any Restricted Subsidiary that constitute an Event of Default.

 

Section 3.10.                          Agreements. (a) No Loan Party nor any Restricted Subsidiary is party or subject to any Restrictive Agreement, except (a) as shown on Schedule 3.10 and (b) to the extent expressly permitted pursuant to Section 6.04(b). No such Restrictive Agreement prohibits the execution, delivery or performance of any Loan Document by a Loan Party.

 

(b)                                     None of the Loan Parties or any Restricted Subsidiary is in default in any manner under any provision of any indenture or other agreement or instrument evidencing Indebtedness, or any other Material Contract or instrument to which it is a party or by which it or any of its Properties are or may be bound, where such default could reasonably be expected to result in a Material Adverse Effect.

 

Section 3.11.                          Federal Reserve Regulations. No Loan Party nor any Restricted Subsidiary is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No Loan proceeds will be used by the any Loan Party or any Restricted Subsidiary to purchase or carry, or to reduce or refinance any Indebtedness incurred to purchase or carry, any Margin Stock or for any related purpose governed by Regulations T, U or X.

 

Section 3.12.                          Not a Regulated Entity. No Loan Party nor any Restricted Subsidiary is (a) an “investment company” or a “person directly or indirectly controlled by or acting on behalf of an investment company” within the meaning of the Investment Company Act of 1940; or (b) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any public utilities code or any other Applicable Law regarding its authority to incur Indebtedness.

 

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Section 3.13.                          Use of Proceeds. The Borrower will use the proceeds of the Closing Date Loans only for the purposes specified in the introductory statement to this Agreement. The proceeds of any Incremental Loans may be used for any general corporate purpose permitted hereunder.

 

Section 3.14.                          Tax Returns. Each of the Loan Parties and the Restricted Subsidiaries has timely filed all federal and all material state, local and foreign tax returns and other reports that it is required by law to file, and has paid, or made provision for the payment of, all material Taxes required to have been paid, except to the extent being Properly Contested. The provision for Taxes on the books of the Loan Parties and the Restricted Subsidiaries is, to the knowledge of the Loan Parties, adequate for all years not closed by applicable statutes, and for its current fiscal year. To the knowledge of the Loan Parties, (i) there is no proposed written Tax assessment against any Loan Party and (ii) there is no current or pending audit or other formal investigation of any Loan Party by a Governmental Authority, in the case of each of clause (i) and clause (ii), except as set forth on Schedule 3.14. The Borrower does not have, and has never had, a trade or business or a permanent establishment in any country other than the United States. The Borrower is treated as an entity disregarded as separate from its indirect owner, Holdings, for U.S. federal income tax purposes and its regarded owner for U.S. federal income tax purposes is a “United States person” within the meaning of Section 7701(a)(30) of the Code.

 

Section 3.15.                          No Material Misstatements. All written information furnished by or on behalf of any Loan Party (i) prior to the Closing Date, to the Administrative Agent or, solely in the case of the Confidential Information Memorandum, any Lender and (ii) from the Closing Date, to the Administrative Agent or any Lender (in the case of each of clauses (i) and (ii) above, other than projected financial information, pro forma financial information, market data and information of a general economic or industry nature), in the case of each of clauses (i) and (ii) above, in connection with the Transactions is or will be, when furnished and taken as a whole, complete and correct in all material respects and does not and will not, when furnished and taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements are made, in each case after giving effect to all supplements thereto. With respect to projected financial information and pro forma financial information furnished to the Administrative Agent and/or included in the Confidential Information Memorandum, the Borrower represents that such information has been or will be prepared in good faith and consistent with Holding’s historical financial statements and upon assumptions believed by the Borrower in good faith to be reasonable at the time made and at the time such projected financial information was made available to the Administrative Agent, it being understood and agreed that financial projections are not a guarantee of financial performance and actual results may differ from financial projections, and such differences may be material.

 

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Section 3.16.                          Employee Benefit Plans. Except as disclosed on Schedule 3.16:

 

(a)                                     Except as would not have a Material Adverse Effect, each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code, and other federal and state laws, and its terms. Each Plan (other than a Multiemployer Plan) that is intended to qualify under Section 401(a) of the Code (i) has received a favorable determination letter (or opinion letter on which it can rely, as applicable) from the IRS upon which the Plan can rely and, to the knowledge of the Loan Parties, nothing has occurred which would prevent, or cause the loss of, such qualification, (ii) has submitted (or will submit) an application for such a letter promptly after the adoption of a Plan and/or (iii) will submit an application for such a letter within the applicable remedial amendment period. Except as would not have a Material Adverse Effect Borrower and its ERISA Affiliates have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any such Plan.

 

(b)                                     There are no pending or, to the knowledge of the Loan Parties, threatened claims (other than routine claims for benefits), actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. To the knowledge of the Loan Parties, there has been no non-exempt prohibited transaction with respect to any Plan that has resulted in or would reasonably be expected to have a Material Adverse Effect.

 

(c)                                      Except as would not have a Material Adverse Effect (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any material Unfunded Pension Liability; (iii) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any material liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower nor any ERISA Affiliate has engaged in a transaction that could reasonably be expected to be subject to liability under Section 4069 or 4212(c) of ERISA.

 

Section 3.17.                          Environmental Matters. Except as disclosed on Schedule 3.17 or as to matters which have been fully resolved without further obligation or liability:

 

(a)                                     no Loan Party nor any Restricted Subsidiaries’ present or, to the actual knowledge of the Loan Parties’, past operations, Real Estate or other Properties are subject to any pending governmental investigation relating to any Environmental Law which would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect;

 

(b)                                     no Loan Party nor any Restricted Subsidiary has received any Environmental Notice, which if the allegations therein were true would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect;

 

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(c)                                      each of the Loan Parties and the Restricted Subsidiaries is, and has been, in compliance with applicable Environmental Laws (which compliance includes obtaining and complying with all permits, licenses and approvals required under Environmental Laws), except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect; and

 

(d)                                     (i) there are no pending lawsuits, proceedings, claims, actions, suits or arbitrations or Environmental Liabilities relating to any Environmental Law, or to the actual knowledge of the Loan Parties, threatened against any Loan Party or any Restricted Subsidiary, and (ii) to the actual knowledge of the Loan Parties, there are no facts, conditions, or circumstances that could reasonably be expected to result in such a lawsuit, proceeding, claim, action, suit or arbitration or Environmental Liability, in the case of clauses (i) and (ii), except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

 

Section 3.18.                          Insurance. Schedule 3.18 lists all insurance policies maintained by the Loan Parties or by the Loan Parties for their Restricted Subsidiaries as of the Closing Date. As of the Closing Date, such insurance is in full force and effect and all premiums have been duly paid.

 

Section 3.19.                          Security Documents. (a) The Guarantee and Collateral Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral (as defined in the Guarantee and Collateral Agreement) and the proceeds thereof and the Pledge Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Pledged Collateral (as defined in the Pledge Agreement) and the proceeds thereof and (i) when the Pledged Collateral (as defined in the Pledge Agreement) is delivered to the Collateral Agent, the Lien created under the Pledge Agreement shall constitute a fully perfected second priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Pledged Collateral, in each case prior and superior in right to any other Person (other than Persons holding Permitted Liens), and (ii) when financing statements in appropriate form are filed in the offices specified on Schedule 3.19, the Lien created under the Guarantee and Collateral Agreement will constitute a fully perfected second priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral (other than Intellectual Property, as defined in the Guarantee and Collateral Agreement), in each case prior and superior in right to any other Person, other than Permitted Liens.

 

(b)                                     Upon the recordation of the Guarantee and Collateral Agreement (or a short-form security agreement in form and substance reasonably satisfactory to the Borrower and the Collateral Agent) with the United States Patent and Trademark Office and the United States Copyright Office, together with the financing statements in appropriate form filed in the offices specified on Schedule 3.19, the Liens created under the Guarantee and Collateral Agreement shall constitute a fully perfected second priority Lien on, and security interest in, all right, title and interest of the Loan Parties in the

 

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Intellectual Property (as defined in the Guarantee and Collateral Agreement) in which a security interest may be perfected by filing in the United States and its territories and possessions, in each case prior and superior in right to any other Person (other than Persons holding Permitted Liens) (it being understood that subsequent recordations in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on registered trademarks and patents, trademark and patent applications and registered copyrights acquired by the Loan Parties after the date hereof).

 

Section 3.20.                          Location of Real Property and Leased Premises. (a) Schedule 3.20(a) lists completely and correctly as of the Closing Date all Real Estate owned by the Loan Parties and the addresses thereof. As of the Closing Date, the Loan Parties own in fee all the Real Estate set forth on Schedule 3.20(a).

 

(b)                                     Schedule 3.20(b) lists completely and correctly as of the Closing Date all Real Estate leased by the Loan Parties and the addresses thereof. As of the Closing Date, the Loan Parties have valid leases in all the Real Estate set forth on Schedule 3.20(b).

 

Section 3.21.                          Labor Matters. No Loan Party is party to or bound by any collective bargaining agreement. There are no material grievances, disputes or controversies with any union or, to any Loan Party’s knowledge, any asserted or threatened strikes, work stoppages or demands for collective bargaining, which in either case could reasonably be expected to have a Material Adverse Effect.

 

Section 3.22.                          Solvency. Immediately after the consummation of the Transactions to occur on the Closing Date and immediately following the making of each Loan, on the Closing Date and after giving effect to the application of the proceeds of each Loan, the Loan Parties and the Restricted Subsidiaries, on a consolidated basis, shall be Solvent.

 

Section 3.23.                          No Defaults. No event or circumstance has occurred or exists that constitutes a Default or Event of Default. No Loan Party nor any Restricted Subsidiary is in default under any Material Contract to the extent such default is reasonably likely to result in the termination of such Material Contract by any party thereto (other than such Loan Party and such Restricted Subsidiary) prior to its scheduled termination date.

 

Section 3.24.                          [Reserved].

 

Section 3.25.                          Intellectual Property. To the knowledge of each Loan Party, each Loan Party and each Restricted Subsidiary owns or has the lawful right to use all Intellectual Property necessary for the conduct of its business, without conflict with any rights of others, except as could not reasonably be expected to have a Material Adverse Effect. There is no pending or, to any Loan Party’s knowledge, threatened Intellectual Property Claim with respect to any Loan Party or any Restricted Subsidiary or any of its Property (including any Intellectual Property) which could reasonably be expected to have a Material Adverse Effect. As of the Closing Date, all registered Intellectual Property owned, used or licensed by, or otherwise subject to any interests of, any Loan Party or any Restricted Subsidiary is shown on Schedule 3.25.

 

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Section 3.26.                          Anti-Terrorism Law; Foreign Corrupt Practices Act. None of the Loan Parties nor any Restricted Subsidiary and, to the knowledge of the Loan Parties and the Restricted Subsidiaries, none of such Person’s respective Affiliates is in violation of any Applicable Laws relating to terrorism or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 and the USA PATRIOT Act. No part of the proceeds of the Loans will be used by any Loan Party or any of their Subsidiaries, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (“FCPA”). No Loan Party or any Restricted Subsidiary nor, to the knowledge of any Loan Party, any director, officer, agent, employee or Affiliate of any Loan Party or any Restricted Subsidiary, (i) is a person on the list of “Specially Designated Nationals and Blocked Persons” or (ii) is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and none of the Loan Parties or any Restricted Subsidiary will directly or indirectly use the proceeds of the Loans or otherwise knowingly make available such proceeds to any person, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

 

ARTICLE 4

CONDITIONS OF LENDING

 

The obligations of the Lenders to make Loans hereunder on the Closing Date are subject to the satisfaction of the following conditions:

 

Section 4.01.                          Conditions to Closing. On the Closing Date:

 

(a)                                     The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, a favorable written opinion of Stroock & Stroock & Lavan LLP, counsel for the Borrower (A) dated the Closing Date, (B) addressed to the Administrative Agent, the Collateral Agent and the Lenders, and (C) in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower hereby requests such counsel to deliver such opinion.

 

(b)                                     [Reserved].

 

(c)                                      The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party (or Person Controlling such Loan Party that is reasonably acceptable to the Administrative Agent) dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause

 

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(B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or similar body of such Loan Party (or Person Controlling such Loan Party that is reasonably acceptable to the Administrative Agent) authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation of such Loan Party have not been amended since the date of the last amendment thereto furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders or the Administrative Agent may reasonably request.

 

(d)                                     The Administrative Agent shall have received a certificate in form and substance satisfactory to the Administrative Agent, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in this Section 4.01 (other than those conditions which are subject to the request or satisfaction of the Lenders or the Administrative Agent).

 

(e)                                      The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.

 

(f)                                       The Security Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.

 

(g)                                      The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated.

 

(h)                                     The Administrative Agent shall have received a notice of Borrowing as required by Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.02).

 

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(i)                                         The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement or to name the Collateral Agent as additional insured, as applicable, in form and substance reasonably satisfactory to the Administrative Agent.

 

(j)                                        The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of the Closing Date, except to the extent such representations and warranties are already qualified by materiality in which case such representations and warranties shall be true and correct in all respects and (ii) to the extent such representations and warranties expressly relate to an earlier date in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.

 

(k)                                     No Default or Event of Default shall have occurred and be continuing.

 

(l)                                         The Administrative Agent shall have received a solvency opinion in form and substance and from an independent valuation firm, in each case acceptable to the Administrative Agent.

 

(m)                                 The Administrative Agent shall have received a copy of the fully executed amendment to the Borrower’s Revolving Credit Facility in form and substance satisfactory to the Administrative Agent.

 

(n)                                     The Administrative Agent shall have received a copy of the fully executed Intercreditor Agreement in form and substance satisfactory to the Administrative Agent.

 

(o)                                     The indenture relating to the Existing Notes shall have been fully satisfied and discharged, the obligations and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.

 

(p)                                     The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of operations, cash flows and members’ surplus of Holdings for the 2013 fiscal year and (ii) the unaudited consolidated balance sheets and related statements of operations and cash flows of Holdings for the fiscal quarter ended March 31, 2014.

 

(q)                                     The Administrative Agent shall have received a certificate in form and substance reasonably satisfactory to the Administrative Agent from the chief financial officer of the Borrower certifying that each of the Loan Parties after giving effect to the Transactions to occur on the Closing Date, is Solvent.

 

(r)                                        All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there

 

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shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.

 

(s)                                       The Lenders shall have received, to the extent requested at least five (5) Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.

 

(t)                                        The Borrower shall have obtained a public corporate credit rating from S&P and a public corporate family rating from Moody’s.

 

Section 4.02.                          Conditions to Closing of Each Incremental Facility. In addition to the conditions in Section 2.24, the agreement of each Lender to make Incremental Loans is subject to the satisfaction of the following conditions precedent:

 

(a)                                     The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of such date, except (i) to the extent such representations and warranties are already qualified by materiality in which case such representations and warranties shall be true and correct in all respects and (ii) to the extent such representations and warranties expressly relate to an earlier date in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.

 

(b)                                     No Default or Event of Default shall have occurred and be continuing.

 

(c)                                      The Administrative Agent shall have received a notice of Borrowing as required by Section 2.03.

 

Each Borrowing of a Loan (other than a conversion of Loans to the other Type, or a continuation of Eurodollar Loans) by the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date of the making of such Incremental Loans that the conditions contained in this Section 4.02 have been satisfied.

 

ARTICLE 5

AFFIRMATIVE COVENANTS

 

Each of Holdings, Parent and the Borrower covenants and agrees with each Lender that so long as this Agreement shall remain in effect and until the principal of and interest on each Loan, all fees and all other expenses or amounts payable under any Loan Document shall have been paid in full, unless the Required Lenders shall otherwise consent in writing, Holdings, the Parent and the Borrower will, and will cause each of the Restricted Subsidiaries to:

 

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Section 5.01.                          Existence; Compliance with Laws; Businesses and Properties.

 

(a)                                     Except as otherwise expressly permitted under Sections 6.06 and 6.09, (i) preserve, renew and maintain in full force and effect its legal existence under the laws of the jurisdiction of its organization and (ii) take all reasonable action to maintain in all respects all rights, privileges (including its good standing), permits, licenses and franchises necessary in the Ordinary Course of Business, except in the case of clause (ii), where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

(b)                                     Comply with all Applicable Laws, including ERISA, Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws, FCPA, OFAC, and laws regarding collection and payment of Taxes, and maintain all approvals necessary to the ownership, lease or operation of its Properties or Real Estate or conduct of its business, unless failure to comply (other than failure to comply with Anti-Terrorism Laws) or maintain could not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, if any Environmental Release or threatened Environmental Release occurs at, on, under, from or to any Properties or Real Estate of any Loan Party or any Restricted Subsidiary, such Loan Party or such Restricted Subsidiary shall, after obtaining knowledge thereof, promptly and diligently comply with all reporting, investigatory, corrective action and other requirements under Environmental Law to the extent necessary to respond to, remediate or otherwise address the Environmental Release in accordance with Environmental Law, whether or not directed to do so by any Governmental Authority.

 

(c)                                      Keep each material license affecting any material Property of the Loan Parties or the Restricted Subsidiaries in full force and effect, except if the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

(d)                                     At all times maintain and preserve all property material to the conduct of such business and keep such property in good repair, working order and condition (except for ordinary wear and tear and casualty and condemnation events) and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith may be properly conducted in all material respects at all times, except if the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.02.                          Insurance. Maintain insurance with insurers (with a Best Rating of at least A7, unless otherwise approved by the Administrative Agent) reasonably satisfactory to Administrative Agent, with respect to the Properties and business of the Loan Parties and the Restricted Subsidiaries of such type (including product liability, workers’ compensation, larceny, embezzlement, or other criminal misappropriation insurance), in such amounts, and with such coverages and deductibles as are customary for companies similarly situated.

 

Section 5.03.                          Taxes. Pay and discharge all of its material Taxes prior to the date on which they become delinquent or penalties attach, unless such Taxes are being Properly Contested.

 

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Section 5.04.                          Financial Statements, Reports, etc. Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Administrative Agent which shall furnish to each Lender:

 

(a)                                     as soon as available, and in any event within 105 days after the close of each fiscal year (commencing with the fiscal year ending December 31, 2014), balance sheets as of the end of such fiscal year and the related statements of operations, cash flow and members’ surplus for such fiscal year, on a consolidated basis for Holdings and its subsidiaries, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by the Borrower and reasonably acceptable to the Administrative Agent (it being agreed that Deloitte & Touche LLP is acceptable to the Administrative Agent), and shall set forth in comparative form corresponding figures for the preceding fiscal year, together with a “management discussion and analysis” in form consistent with the “management discussion and analysis” delivered in respect of the Existing Notes (which may be set forth in a separate document and not included with the audited financial statements);

 

(b)                                     within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of operations, cash flow and members’ surplus showing the financial condition of Holdings and its consolidated subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and, other than with respect to quarterly reports during the remainder of the first fiscal year after the Closing Date, comparative figures for the same periods in the immediately preceding fiscal year, which financial statements shall have been subject to a SAS 100 review (or other similar review by Holdings’s accountants if otherwise available) or shall have been certified by Holdings’s chief financial officer as fairly presenting the financial condition and results of operations of Holdings and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a “management discussion and analysis” in form consistent with the “management discussion and analysis” delivered in respect of the Existing Notes (which may be set forth in a separate document and not included with the quarterly financial statements);

 

(c)                                      to the extent furnished to lenders under the Revolving Credit Facility, substantially concurrently with such furnishing, the financial statements required by Section 4.1(a)(i) of the Revolving Credit Facility;

 

(d)                                     concurrently with the delivery of financial statements under clauses (a) and (b) above, (i) a Compliance Certificate executed by the chief financial officer of the Borrower (A) certifying that no Event of Default or, to the knowledge of the chief financial officer, no Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (B) setting forth computations in

 

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reasonable detail satisfactory to the Administrative Agent of the Available Amount (and the application of amounts thereof, if any, during the period covered by such financial statements) and in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow and (ii) in the case of a certificate delivered with the financial statements required by paragraph (a) above, beginning with the certificate delivered in respect of the fiscal year ending December 31, 2015, a Perfection Certificate Supplement or a certificate of a Financial Officer of the Borrower confirming that there has been no change in such information since the date of the Perfection Certificate or latest Perfection Certificate Supplement delivered pursuant to the Guarantee and Collateral Agreement;

 

(e)                                      not later than 30 days following the receipt thereof, copies of all management letters and other material reports submitted to Holdings or its subsidiaries by its accountants in connection with such financial statements, if any;

 

(f)                                       not later than 45 days after the beginning of each fiscal year, projections of the Holding’s consolidated balance sheets and related statements of operations and cash flow for the next fiscal year, quarter by quarter;

 

(g)                                      promptly after the sending or filing thereof, copies of (i) any proxy statements, financial statements or reports that any Loan Party or any Restricted Subsidiary has made generally available to its members and (ii) any regular, periodic and special reports or registration statements or prospectuses that any Loan Party or any Restricted Subsidiary files with the U.S. Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; provided, however, that with respect to each of the items to be furnished to the Administrative Agent and the Lenders pursuant to this clause (g), each such item shall be deemed to be so furnished to the extent it is posted to a secure, password-protected website to which the Administrative Agent has been granted access and such Loan Party has provided the Administrative Agent and the Lenders with written notice that such item has been posted;

 

(h)                                     [reserved];

 

(i)                                         promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;

 

(j)                                        within 120 days after the beginning of each fiscal year, at the request of the Administrative Agent or of the Required Lenders and, upon reasonable prior notice, hold a telephonic conference call with all Lenders who choose to participate, at the expense of the participating Lenders, at which meeting the financial results of the previous fiscal year, the financial condition of Holdings and its subsidiaries and the projections presented for the current fiscal year of Holdings shall be reviewed;

 

(k)                                     [reserved;]

 

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(l)                                         at any time that any of the Borrower’s Subsidiaries is an Unrestricted Subsidiary (other than with respect to Neff Rental Finance Corp.), then the financial statements required by Sections 5.04(a) and (b) shall attach unaudited consolidating financial statements with respect to such Unrestricted Subsidiary (or, in the case of financial statements required by Section 5.04(a), audited consolidating financial statements if required by GAAP) unless (i) such Unrestricted Subsidiary owns tangible assets that have an aggregate fair market value of less than 2.5% of the Consolidated Tangible Assets as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b) and has revenues that would account for less than 2.5% of the total consolidated revenues of Holdings for the last four fiscal quarters ended as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b) and (ii) taken together, all such Unrestricted Subsidiaries collectively own tangible assets that have an aggregate fair market value of less than 5.0% of the Consolidated Tangible Assets as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b) and collectively have revenue that would account for less than 5.0% of the total consolidated revenues of Holdings for the last four fiscal quarters ended as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b);

 

(m)                                 [reserved]; and

 

(n)                                     such other reports and information (financial or otherwise) as the Administrative Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s financial condition or business.

 

The Borrower hereby acknowledges and agrees that all financial statements and certificates furnished pursuant to paragraphs (a) and (b) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by the fourth paragraph of Section 9.01 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph.

 

Section 5.05.                          Litigation and Other Notices. Notify the Administrative Agent and the Lenders in writing, promptly after a Loan Party’s obtaining knowledge thereof, of any of the following that affects any Loan Party:

 

(a)                                     the threat (in writing) or commencement of any proceeding or investigation, whether or not covered by insurance, if the same could reasonably be expected to have a Material Adverse Effect;

 

(b)                                     any pending or threatened labor dispute, strike or walkout, or the expiration of any material labor contract, if the same could reasonably be expected to have a Material Adverse Effect;

 

(c)                                      any termination of, or any event that would permit a third-party counterparty to terminate, a Material Contract or any “event of default” (or such similar

 

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term) under or termination of the Revolving Credit Facility (except, in each case, any termination in accordance with its terms) shall have occurred;

 

(d)                                     the existence of any Default or Event of Default;

 

(e)                                      any judgment against any Loan Party or any Restricted Subsidiary if the same could reasonably be expected to have a Material Adverse Effect;

 

(f)                                       the assertion of any Intellectual Property Claim, if the same could reasonably be expected to have a Material Adverse Effect;

 

(g)                                      any violation or asserted violation of any Applicable Law (including ERISA, OSHA, FLSA, or any Environmental Laws), if the same could reasonably be expected to have a Material Adverse Effect;

 

(h)                                     any Environmental Release or threatened Environmental Release on, at, under, from or to any Property or Real Estate owned, leased, operated or occupied by a Loan Party or any of its subsidiaries, if the same could reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect;

 

(i)                                         receipt of any Environmental Notice alleging or seeking fines, penalties, damages, or remediation costs, or any Loan Party or any of the Restricted Subsidiaries or their respective Properties becoming subject to any Environmental Liability if the allegations in such Environmental Notice proved to be true could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect;

 

(j)                                        the occurrence of any ERISA Event if the same, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;

 

(k)                                     the discharge of or any withdrawal or resignation by Holdings’s independent accountants;

 

(l)                                         the occurrence of any event or circumstance that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect; and

 

(m)                                 any negative change in the Borrower’s corporate rating by S&P, in the Borrower’s corporate family rating by Moody’s or in the ratings of the Loans by S&P or Moody’s, or any notice from either such agency indicating its intent to effect such a change or to place the Borrower or the Loans on a “CreditWatch” or “WatchList” or any similar list, in each case with negative implications, or its cessation of, or its intent to cease, rating the Borrower or the Loans.

 

Section 5.06.                          Information Regarding Collateral. Furnish to the Administrative Agent prompt written notice of any change (i) in any Loan Party’s corporate name, (ii) in the jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or corporate structure or (iv) in any Loan Party’s Federal Taxpayer Identification Number. Holdings, Parent and the Borrower agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform

 

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Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral. The Borrower also agrees promptly to notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.

 

Section 5.07.                          Maintaining Records; Access to Properties and Inspections; Maintenance of Ratings. (a) Keep proper books of record and account in which full, true and correct entries in conformity with GAAP and all requirements of law are made of all dealings and transactions in relation to its business and activities.

 

(b)                                     Permit the Agents from time to time, subject (except when an Event of Default exists) to reasonable notice and normal business hours, to visit and inspect the Properties of any Loan Party or any Restricted Subsidiary, inspect, audit and make extracts from any Loan Party’s books and records, and discuss with its officers, employees, agents, advisors and independent accountants such Loan Party’s business, financial condition, assets, and results of operations; provided that, unless an Event of Default shall have occurred and be continuing, the Agents shall not exercise such rights under this Section 5.07(b) more often than one time per fiscal year. Lenders may participate in any such visit or inspection, at their own expense. Neither the Agents nor any Lender shall have any duty to any Loan Party to make any inspection, nor to share any results of any inspection, appraisal or report with any Loan Party. The Loan Parties acknowledge that all inspections, appraisals and reports are prepared by the Agents and the Lenders for their purposes, and none of the Loan Parties or the Restricted Subsidiaries shall be entitled to rely upon them.

 

(c)                                      Reimburse the Agents for all reasonable charges, costs and expenses of the Agents in connection with examinations of any Loan Party’s books and records or any other financial or Collateral matters as the Agents deem appropriate, up to one time per fiscal year; provided, however, that if an examination is initiated during an Event of Default, all reasonable charges, costs and expenses therefor shall be reimbursed by the Borrower without regard to such limits. Subject to and without limiting the foregoing, the Borrower specifically agrees to pay each Agent’s then standard charges for each day that an employee of such Agent or its Affiliates is engaged in any examination activities, and shall pay the standard charges of such Agent’s internal appraisal group. This Section 5.07(c) shall not be construed to limit the Agents’ rights to conduct examinations or to obtain appraisals, nor to use third parties for such purposes.

 

(d)                                     In the case of the Borrower, use commercially reasonable efforts to cause the Loans to be continuously rated by S&P and Moody’s and use commercially reasonable efforts to maintain a corporate rating from S&P and a corporate family rating from Moody’s, in each case in respect of the Borrower.

 

Section 5.08.                          Use of Proceeds. Use the proceeds of the Loans only for the purposes specified in the introductory statement to this Agreement.

 

Section 5.09.                          Additional Guarantors. (a)If, after the Closing Date, (1) the Borrower or any other Loan Party shall acquire or create another Domestic Subsidiary,

 

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(2) any Unrestricted Subsidiary is Redesignated as a Domestic Restricted Subsidiary or (3) any Foreign Restricted Subsidiary guarantees any Indebtedness of the Borrower or another Loan Party, then the Borrower or any other applicable Loan Party shall within five (5) Business Days (or such longer period as may be agreed by the Administrative Agent) (i) cause such Domestic Restricted Subsidiary or Foreign Restricted Subsidiary, as applicable, (A) to become a party to the Guarantee and Collateral Agreement and the Pledge Agreement and (B) to take such actions necessary to grant to the Agents for the benefit of the Secured Parties a perfected second priority security interest in the Collateral and the Pledged Collateral described in the Guarantee and Collateral Agreement and the Pledge Agreement, respectively, with respect to such Domestic Restricted Subsidiary or Foreign Restricted Subsidiary, as applicable, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office, and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by applicable law or as may be reasonably requested by the Agents, (ii) execute and deliver to the Agents such amendments to the Pledge Agreement (including schedules thereto) as the Agents deem necessary to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected second priority security interest (subject to Permitted Liens) in the Equity Interests of such Domestic Restricted Subsidiary or Foreign Restricted Subsidiary to the extent required by the Pledge Agreement and deliver the certificates, if any, representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer to the extent required by the Pledge Agreement and (iii) if reasonably requested by the Agents, deliver to the Agents customary legal opinions in form and substance reasonably satisfactory to the Agents and any other agreements, instruments, certificates or documents as may be required pursuant to the Security Documents or as may be reasonably requested by the Agents; provided, however, the Borrower and the Restricted Subsidiaries shall not be required to comply with the provisions of this clause (a) with respect to any such Domestic Restricted Subsidiary (I) that (x) owns tangible assets that have an aggregate fair market value of less than 2.5% of the Consolidated Tangible Assets and (y) together with all such Domestic Restricted Subsidiaries exempted from the requirements of this Section 5.09 pursuant to this proviso own tangible assets that have an aggregate fair market value of less than 5.0% of Consolidated Tangible Assets, in each case, as of the end of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b) and (II) (x) whose revenues would account for less than 2.5% of the total consolidated revenues of Holdings and (y) whose revenues, taken together with the revenues of all such Domestic Restricted Subsidiaries exempted from the requirements of this Section 5.09 pursuant to this proviso, would account for less than 5.0% of the total consolidated revenues of Holdings, in each case, as of the end of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b).

 

(b)                                     Notwithstanding anything to the contrary, any Subsidiary that is a borrower under, or a guarantor with respect to, the Revolving Credit Facility shall be a Guarantor of the Obligations hereunder.

 

Section 5.10.                          Additional Collateral; Further Assurances. Execute any and all further documents, financing statements, agreements and instruments, and take all further

 

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action (including filing Uniform Commercial Code and other financing statements, and mortgages, if applicable) that may be required under applicable law, or that the Required Lenders, the Administrative Agent or the Collateral Agent may reasonably request, in order to effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and second priority of the security interests created or intended to be created by the Security Documents. In addition, from time to time, Holdings, Parent and Borrower will, at its cost and expense, promptly secure the Obligations by pledging or creating, or causing to be pledged or created, perfected security interests with respect to such of its and the Restricted Subsidiaries’ assets and properties as the Agents or the Required Lenders shall designate (it being understood that it is the intent of the parties that the Obligations shall be secured by substantially all the assets of Holdings, Parent, the Borrower and the Restricted Subsidiaries constituting (or required to constitute) Collateral (including properties acquired subsequent to the Closing Date) pursuant to the Security Documents). Such security interests and Liens will be created under the Security Documents and other security agreements and other instruments and documents in form and substance satisfactory to the Collateral Agent, and Holdings, Parent and the Borrower shall deliver or cause to be delivered to the Lenders all such instruments and documents (including legal opinions and lien searches) as the Collateral Agent shall reasonably request to evidence compliance with this Section 5.10. The Borrower agrees to provide such evidence as the Collateral Agent shall reasonably request as to the perfection and priority status of each such security interest and Lien.

 

Section 5.11.                          Designation of Unrestricted Subsidiaries.

 

(a)                                     The Borrower may designate any Subsidiary of the Borrower as an “Unrestricted Subsidiary” under this Agreement (a “Designation”) only if:

 

(i)                             no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation;

 

(ii)                            the Borrower or any Restricted Subsidiary would be permitted to make, at the time of such Designation, an Investment pursuant to Section 6.05 in an amount equal to the fair market value of the Borrower’s or such Restricted Subsidiary’s proportionate interest in such Subsidiary on such date; and

 

(iii)                             the Total Leverage Ratio does not exceed 4.0 to 1.0 on a pro forma basis after giving effect to such Designation tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b).

 

(b)                                     Without limiting the provisions of the foregoing clause (a) and in furtherance thereof, no Subsidiary shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:

 

(i)                             has no Indebtedness other than Non-Recourse Debt;

 

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(ii)                          is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding are no less favorable to the Borrower or the Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates;

 

(iii)                       is a Person with respect to which neither the Borrower nor any Restricted Subsidiary has any direct or indirect obligation (A) to subscribe for additional Equity Interests or (B) to maintain or preserve the Person’s financial condition or to cause the Person to achieve any specified levels of operating results; and

 

(iv)                      has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Borrower or any Restricted Subsidiary, except for any guarantee given solely to support the pledge by the Borrower or any Restricted Subsidiary of the Equity Interests of such Unrestricted Subsidiary, which guarantee is not recourse to the Borrower or any Restricted Subsidiary.

 

(c)                                      If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 6.01 or the Lien is not permitted under Section 6.02, the Borrower shall be in default of the applicable Section.

 

(d)                                     The Borrower may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:

 

(i)                             no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation;

 

(ii)                            all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Agreement; and

 

(iii)                             the Total Leverage Ratio does not exceed 4.0 to 1.0 on a pro forma basis after giving effect to such Redesignation tested as of most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b).

 

(e)                                      All Designations and Redesignations shall be evidenced by resolutions of the board of directors of the Borrower, delivered to the Administrative Agent certifying compliance with the foregoing provisions.

 

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Section 5.12.                          Post-Closing Collateral Matters.

 

Executed and deliver the documents and complete the tasks set forth on Schedule 5.12, in each case, within the time limits specified on such schedule.

 

ARTICLE 6

NEGATIVE COVENANTS

 

Holdings, Parent and the Borrower covenant and agree with each Lender that, so long as this Agreement shall remain in effect and until the principal of and interest on each Loan, all fees and all other expenses or amounts payable under any Loan Document have been paid in full, unless the Required Lenders shall otherwise consent in writing, Holdings, Parent and the Borrower will not, and will not cause or permit any of the Restricted Subsidiaries to:

 

Section 6.01.                          Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:

 

(a)                                     Indebtedness created hereunder and under the other Loan Documents;

 

(b)                                     Junior Debt; provided (i) (A) in the case of Junior Secured Debt, the Total Leverage Ratio does not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such incurrence of Junior Debt tested as of most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) and (B) in the case of unsecured Indebtedness, the Total Leverage Ratio does not exceed 6.00 to 1.00 on a pro forma basis after giving effect to such incurrence tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), (ii) no Default or Event of Default has occurred and is continuing or would result therefrom, (iii) in the case of an incurrence of Junior Secured Debt, such Junior Secured Debt is subject to an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent, (iv) such Junior Debt has a final maturity no sooner than, and a Weighted Average Life to Maturity no less than, the Loans, (v) there is no borrower or guarantor with respect to such Junior Debt that is not a Loan Party, (vi) in the case of Junior Secured Debt, such Junior Secured Debt is secured by a Lien that does not extend to any assets of Holdings and its subsidiaries that do not constitute Collateral, and (vii) the terms of such Junior Debt when taken as a whole are not more restrictive to the Loan Parties than the terms contained herein;

 

(c)                                      Permitted Purchase Money Debt;

 

(d)                                     Indebtedness existing on the date hereof and set forth in Schedule 6.01(d);

 

(e)                                      to the extent constituting Indebtedness, cash management obligations and other Indebtedness in respect of cash management services in the Ordinary Course of Business, other than obligations outstanding under Hedging Agreements permitted under Section 6.14;

 

(f)                                       Indebtedness not otherwise permitted pursuant to this Section 6.01 that is in existence when a Person becomes a Restricted Subsidiary or that is secured by an asset

 

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when acquired by a Loan Party or a Restricted Subsidiary or that is incurred in contemplation of such Person becoming a Restricted Subsidiary or such acquisition, and, together with any Refinancing Debt in respect thereof, does not exceed $50,000,000 in the aggregate at any time outstanding;

 

(g)                                      Indebtedness in respect of Sale and Leaseback Transactions in an aggregate principal amount at any time not to exceed the greater of (i) $20,000,000 and (ii) 4.0% of Consolidated Tangible Assets;

 

(h)                                     Refinancing Debt (other than in respect of Section 6.01(i));

 

(i)                                         Indebtedness of the Borrower and any Guarantor under the Revolving Credit Facility in an aggregate amount at any time outstanding incurred pursuant to this clause (i) in a principal amount not to exceed the greater of (1) $500,000,000 and (2) the amount determined in accordance with clause (b) of the definition of Borrowing Base (as defined in the Revolving Credit Facility as in effect on the date hereof);

 

(j)                                        unsecured Indebtedness to Permitted Investors, or any investment fund or vehicle managed, sponsored or advised by a Permitted Investor, and any Affiliate of or successor to any such investment fund or vehicle in an aggregate principal amount not to exceed $50,000,000 at any one time outstanding so long as no cash interest or amortization payments are made on, or required with respect to, such Indebtedness and such Indebtedness has a final maturity date at least six months after the Latest Maturity Date;

 

(k)                                     intercompany Indebtedness of Parent and the Restricted Subsidiaries to the extent permitted by Section 6.05(e) so long as such Indebtedness is subordinated to the Obligations pursuant to an Affiliate Subordination Agreement;

 

(l)                                         Indebtedness under Hedging Agreements permitted under Section 6.14;

 

(m)                                 Indebtedness arising in connection with the endorsement of instruments or other payment items for deposit in the Ordinary Course of Business;

 

(n)                                     Indebtedness incurred in the Ordinary Course of Business under performance, surety, statutory, and appeal bonds, and Indebtedness incurred in respect of workers’ compensation claims;

 

(o)                                     Indebtedness consisting of property, casualty, liability, or other insurance premiums due or financed in the Ordinary Course of Business;

 

(p)                                     indemnification, adjustment of purchase price, earn-out or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets of the Loan Parties or any Restricted Subsidiary or Equity Interests of the Loan Parties or any Restricted Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing or in contemplation of any such acquisition; provided that in the case of a disposition, the maximum aggregate liability in

 

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respect of all such obligations outstanding under this clause (p) shall at no time exceed the gross proceeds actually received by the Loan Parties and the Restricted Subsidiaries in connection with such disposition;

 

(q)                                     Indebtedness incurred by Foreign Restricted Subsidiaries in an aggregate principal amount not exceeding $20,000,000 at any time outstanding;

 

(r)                                        [reserved];

 

(s)                                       Indebtedness that is not included in any of the preceding clauses of this Section 6.01 not to exceed a principal amount in the aggregate at any time equal to the greater of (i) $30,000,000 and (ii) 6.0% of Consolidated Tangible Assets; provided, that Indebtedness incurred by any Restricted Subsidiary that is not a Loan Party shall not exceed $10,000,000 at any time;

 

(t)                                        Permitted Pari Passu Priority Refinancing Debt, Permitted Junior Priority Refinancing Debt and/or Permitted Unsecured Refinancing Debt and any Refinancing Debt with respect thereto;

 

(u)                                     Indebtedness of the Borrower in respect of one or more series of senior unsecured notes or senior secured notes that will be secured by the Collateral on a pari passu or junior basis with the Obligations (“Incremental Equivalent Debt”), to the extent that the Borrower would have been permitted to incur such Indebtedness pursuant to, and such Indebtedness shall be deemed to be incurred in reliance on, Section 2.24 (and subject to the conditions set forth therein, other than Section 2.24(b)(iii)); provided that (i) such Incremental Equivalent Debt is not scheduled to mature prior to the Latest Maturity Date then in effect, (ii) the aggregate principal amount of Incremental Equivalent Debt issued pursuant to this clause (u) plus the aggregate principal amount of any Incremental Facilities shall not exceed the Incremental Cap, (iii) such Incremental Equivalent Debt shall not be guaranteed by any person other than a Loan Party (but such Incremental Equivalent Debt may include a co-issuer or co-borrower that is a shell entity that is formed for the sole purpose of acting as co-issuer or co-borrower with respect thereto and holds no assets and has no liabilities other than liabilities with respect to the issuance of such Incremental Equivalent Debt), (iv) in the case of Incremental Equivalent Debt that is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, Parent, the Borrower or any of the Restricted Subsidiaries other than any asset constituting Collateral, (v) the Weighted Average Life to Maturity of such Incremental Equivalent shall not be less than the Weighted Average Life to Maturity of the Loans outstanding hereunder, (vi) if such Incremental Equivalent Debt is secured, such Incremental Equivalent Debt and the trustee or agent under the documentation governing such Incremental Equivalent Debt shall be subject to the Intercreditor Agreement or another intercreditor agreement satisfactory to the Administrative Agent reflecting the junior or pari passu status of such Incremental Equivalent Debt and (vii) the covenants and events of default applicable to such Incremental Equivalent Debt shall not be, when taken as a whole, materially more favorable to the holders of such Incremental Equivalent Debt than those applicable to the Loans or shall otherwise be reasonably

 

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satisfactory to the Administrative Agent (it being agreed that terms applicable only after the Latest Maturity Date are satisfactory); and

 

(v)                                     all premiums (if any), interest (including interest paid-in-kind), fees (including up-front fees and original issue discount), expenses, charges, accretion of original issue discount and additional or contingent interest on obligations described in clauses (a) through (u) of this Section 6.01.

 

Section 6.02.                          Liens. Create, incur, assume or permit to exist any Lien on any property or assets (including Equity Interests or other securities of any Person, including any Loan Party or any Restricted Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except:

 

(a)                                     any Lien created under the Loan Documents;

 

(b)                                     Purchase Money Liens securing Permitted Purchase Money Debt;

 

(c)                                      Liens for Taxes not yet due or being Properly Contested;

 

(d)                                     statutory Liens, landlords and mechanics’, workers’, materialmen’s or other like Liens (other than Liens for Taxes or imposed under ERISA) arising in the Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is (x) not yet due or payable or (y) being Properly Contested, and (ii) such Liens could not reasonably be expected to have a Material Adverse Effect;

 

(e)                                      Liens incurred or deposits made in the Ordinary Course of Business to secure the performance of tenders, bids, leases, contracts (except those relating to Indebtedness), statutory obligations and other similar obligations, or arising as a result of progress payments under government contracts, including rights of offset and set-off;

 

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

 

(g)                                      Liens arising by virtue of a judgment or judicial order against any Loan Party or any Restricted Subsidiary, or any Property of any Loan Party or any Restricted Subsidiary, as long as such Liens are (i) in existence for less than 20 consecutive days or being Properly Contested and (ii) with respect to any such Liens on the Collateral, at all times junior to the Collateral Agent’s Liens;

 

(h)                                     easements, rights-of-way, restrictions, covenants or other agreements of record, and other similar charges or encumbrances on Real Estate, that do not secure any monetary obligation and do not interfere with the Ordinary Course of Business;

 

(i)                                         normal and customary rights of setoff upon deposits in favor of depository institutions, and Liens of a collecting bank on Payment Items in the course of collection;

 

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(j)                                        Liens securing the obligations of any Loan Party or any Restricted Subsidiary with respect to (i) Indebtedness permitted under Section 6.01(i) and Related Swap Contracts (as defined in the Revolving Credit Facility as in effect on the date hereof), (ii) Junior Secured Debt permitted under Section 6.01(b), (iii) Indebtedness permitted under Section 6.01(q), provided such Liens permitted by this clause (iii) encumber the assets of one or more Foreign Restricted Subsidiaries only and such assets do not constitute Collateral, (iv) rental split arrangements, (v) Indebtedness permitted under Section 6.01(g), provided such Liens permitted by this clause (v) encumber only the assets subject to such Sale and Leaseback Transactions; (vi) Indebtedness permitted under Section 6.01(h) so long as the Indebtedness being refinanced is secured by a Lien; (vii) Permitted Pari Passu Priority Refinancing Debt and/or Permitted Junior Priority Refinancing Debt; and (viii) Indebtedness permitted under Section 6.01(u).

 

(k)                                     existing Liens shown on Schedule 6.02; provided, that such Liens shall secure only those obligations which they secure on the Closing Date and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

 

(l)                                         Liens arising with respect to pledges and deposits made in the Ordinary Course of Business securing deductibles, self-insurance, insurance premiums, co-payment, co-insurance, retentions and similar obligations to providers of insurance; and pledges and deposits in the Ordinary Course of Business securing liability for reimbursement or indemnification obligations to (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to any Loan Party or any Restricted Subsidiary;

 

(m)                                 Liens arising with respect to operating leases of the Property of any Loan Party or any Restricted Subsidiary, in each case entered into in the Ordinary Course of Business;

 

(n)                                     Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Loan Party or any Restricted Subsidiary in the Ordinary Course of Business;

 

(o)                                     Liens on property existing at the time such property or the Person that owns such property is acquired or merged with or into or consolidated with Loan Party or any Restricted Subsidiary to the extent permitted hereunder; provided that (i) such Lien secures Indebtedness permitted by Section 6.01(f), (ii) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Restricted Subsidiary, as the case may be, (iii) such Liens do not extend to property not subject to such Liens at the time of acquisition (other than improvements thereon) and (iv) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principle amount thereof;

 

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(p)                                     the filing of UCC financing statements solely as a precautionary measure in connection with operating leases or consignment of goods;

 

(q)                                     Liens on (i) Inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of (x) bankers’ acceptances issued or created for the account of such Person or (y) trade accounts payable incurred in the Ordinary Course of Business, in each case, to facilitate the purchase, shipment or storage of such Inventory or other goods and (ii) Inventory to secure obligations for the deferred purchase price of such Inventory, payment for which is deferred for less than six (6) months;

 

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

 

(s)                                       Liens (i) on cash advances or deposits in favor of the seller of any property to be acquired in an acquisition to be applied against the purchase price for such acquisition and (ii) consisting of an agreement to transfer any property in a disposition, in each case, solely to the extent such acquisition or disposition, as the case may be, would have been permitted on the date of the creation of such Lien;

 

(t)                                        Liens with respect to any interest or title of a lessor under leases entered into by any Loan Party or any Restricted Subsidiary in the Ordinary Course of Business;

 

(u)                                     any attachment or judgment Lien not constituting an Event of Default; and

 

(v)                                     other Liens securing liabilities permitted hereunder in an aggregate amount at any time outstanding not to exceed the greater of (i) $30,000,000 and (ii) 6.0% of Consolidated Tangible Assets.

 

Section 6.03.                          Sale and Leaseback Transactions. Enter into any arrangement, directly or indirectly, with any Person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred (such transaction, a “Sale and Leaseback Transaction”) unless (a) the sale or transfer of such property is permitted by Sections 6.06 and 6.09 and (b) any Indebtedness or Liens arising in connection therewith are permitted by Sections 6.01 and 6.02, as the case may be.

 

Section 6.04.                          Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years;

 

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provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.

 

(b)                                 Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred

 

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hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).

 

Section 6.05.                          Investments, Loans and Advances. Purchase, hold or acquire any Equity Interests, evidences of indebtedness or other securities of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person (“Investments”), except:

 

(a)                                 (i) Investments by the Loan Parties and the Restricted Subsidiaries existing on the date hereof in the Equity Interests of the Subsidiaries and (ii) additional Investments by the Loan Parties and the Restricted Subsidiaries in the Equity Interests of the Restricted Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to voting stock of a Foreign Subsidiary referred to therein) and (B) the aggregate amount of Investments made after the Closing Date by Loan Parties in Subsidiaries that are not Loan Parties (determined without regard to any write-downs or write-offs of such Investments) at any time outstanding shall not exceed the greater of $20,000,000 and 3.75% of Consolidated Tangible Assets;

 

(b)                                 Investments existing on the Closing Date and set forth on Schedule 6.05;

 

(c)                                  cash on deposit with a financial institution and Cash Equivalents;

 

(d)                                 [reserved];

 

(e)                                  loans or advances made by the Loan Parties to any Restricted Subsidiary and made by any Restricted Subsidiary to any Loan Party or any other Restricted Subsidiary; provided that (i) such loans and advances shall be unsecured and

 

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subordinated to the Obligations pursuant to an Affiliate Subordination Agreement and (ii) the amount of such loans and advances made by Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (a) above;

 

(f)                                   Hedging Agreements permitted by Section 6.14;

 

(g)                                  Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers;

 

(h)                                 lease, utility and other similar deposits in the Ordinary Course of Business;

 

(i)                                     Investments made by any Loan Party or any Restricted Subsidiary for consideration consisting only of Equity Interests of Holdings;

 

(j)                                    stock, obligations or securities received in settlement of debts created in the Ordinary Course of Business and owing to the Loan Parties or any Restricted Subsidiary or in satisfaction of judgments;

 

(k)                                 Investments owned by any Person at the time it becomes a Restricted Subsidiary not made in contemplation of the acquisition of such Person (but excluding Investments in subsidiaries which are otherwise permitted by this Section 6.05);

 

(l)                                     (i) advances to an officer or employee for salary, travel expenses, commissions and similar items in the Ordinary Course of Business, (ii) advances or loans to an officer or an employee related to tax withholding in respect of management equity incentive awards and (iii) prepaid expenses and extensions of trade credit made in the Ordinary Course of Business;

 

(m)                             Permitted Acquisitions;

 

(n)                                 so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, other Investments made from the Available Amount; and

 

(o)                                 any other Investments by the Loan Parties and the Restricted Subsidiaries after the Closing Date in an aggregate amount not to exceed the greater of (i) $20,000,000 and (ii) 4.0% of Consolidated Tangible Assets (less the aggregate amount of Investments made in Unrestricted Subsidiaries or joint ventures pursuant to Section 6.05(n) above from amounts described in clause (a)(i) in the definition of Available Amount) at any one time outstanding (determined without regard to any write-downs or write-offs of such Investments).

 

Section 6.06.                          Disposition of Assets. Make any Asset Sale otherwise permitted under Section 6.09 unless (a) no Event of Default has occurred and is continuing or would result from such Asset Sale, (b) such Asset Sale is for consideration at least 75% of which is cash, (c) such consideration is at least equal to the fair market value of the

 

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assets being sold, transferred, leased or disposed of; provided that the proceeds of any Asset Sale shall be subject to the provisions of Section 2.13(a).

 

Section 6.07.                          [Reserved].

 

Section 6.08.                          Restrictions on Payment of Certain Indebtedness. (a) (i) Make any distribution, whether in cash, property, securities or a combination thereof, other than regular scheduled payments of principal, interest and fees as and when due (to the extent not prohibited by applicable subordination provisions or intercreditor agreement), in respect of, or pay, or commit to pay, or directly or indirectly redeem, repurchase, retire or otherwise acquire for consideration, or set apart any sum for the aforesaid purposes, any Junior Debt except (A) Refinancing Debt with respect to such Indebtedness to the extent permitted by Section 6.01, and (B) intercompany Indebtedness owed to a Loan Party, or (ii) pay in cash any amount in respect of any Indebtedness or preferred Equity Interests that may at the obligor’s option be paid in kind or in other securities.

 

(b)                                 Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may prepay, redeem, purchase, defease or otherwise satisfy Junior Debt or make payments prohibited by Section 6.08(a) in an aggregate amount not to exceed the sum of (i) $2,000,000 per fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (ii) so long as the Total Leverage Ratio shall not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such prepayment, redemption, purchase, defeasance or satisfaction and at the time of and immediately after giving effect to such prepayment, redemption, purchase, defeasance or satisfaction tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), the Available Amount.

 

Section 6.09.                          Fundamental Changes. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of Holdings or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other Person, except that (a) any Loan Party and any Restricted Subsidiary may purchase and sell inventory in the Ordinary Course of Business and (b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) any Wholly Owned Restricted Subsidiary may merge with and into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) [Reserved], (iii) any Wholly Owned Restricted Subsidiary may merge into or consolidate with (including by dissolution thereof) any other Wholly Owned Restricted Subsidiary in a transaction in which the surviving entity is a Wholly Owned Restricted Subsidiary and no Person other than the Borrower or a Wholly Owned Restricted Subsidiary receives

 

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any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (iv) any Loan Party may (a) make Permitted Acquisitions and any other Investment permitted under Section 6.05 and (b) enter into Sale and Leaseback Transactions.

 

Section 6.10.                          [Reserved].

 

Section 6.11.                          Amendments to Other Indebtedness and Agreements. Permit or enter into (a) any waiver, supplement, modification, amendment, termination or release of any indenture, instrument or agreement pursuant to which any Junior Debt of any of the Loan Parties or any of the Restricted Subsidiaries is outstanding if the effect of such waiver, supplement, modification, amendment, termination or release would, taken as a whole, materially increase the obligations of the obligor or confer additional material rights on the holder of such Indebtedness in a manner materially adverse to the Lenders, taken as a whole, (b) any waiver, supplement, modification or amendment of any Organic Documents of any Loan Party or any Restricted Subsidiary to the extent any such waiver, supplement, modification or amendment would be materially adverse to the Lenders or (c) any waiver, supplement, modification or amendment of the Revolving Credit Facility or any documentation related thereto if such waiver, supplement, modification or amendment (i) increases the commitments thereunder or the principal amount of outstanding loans and/or letters of credit thereunder to an amount greater than the principal amount of Indebtedness permitted to be incurred under Section 6.01(i), (ii) adds amortization (other than nominal amortization) or adds or changes any redemption, put or mandatory prepayment provisions (or any definitions in respect thereof), but excluding modifications to thresholds and conditions relating to the exercise of cash dominion, in a manner more onerous to the Loan Parties or the Restricted Subsidiaries than those in effect as of the date hereof, (iii) results in the Obligations not being permitted under the Revolving Credit Facility, (iv) restricts, limits or conditions any required payments (including mandatory prepayments) in respect of all or any portion of the Obligations (other than restrictions or conditions in effect as of the date hereof) or (v) would contravene the terms of the Intercreditor Agreement.

 

Section 6.12.                          [Reserved].

 

Section 6.13.                          Accounting Changes. Make any material change in accounting treatment or reporting practices, except as required by GAAP and in accordance with Section 1.02; or change its fiscal year.

 

Section 6.14.                          Hedging Agreements. Enter into any Hedging Agreement, except to hedge bona fide risks arising in the Ordinary Course of Business and not for speculative purposes.

 

Section 6.15.                          Conduct of Business. Fail to be engaged (directly or indirectly) primarily in the business conducted by it on the Closing Date or any business reasonably related, complementary or ancillary thereto (including related, complementary or ancillary technologies) or reasonable extensions thereof.

 

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Section 6.16.                          Affiliate Transactions. Except for transactions between or among Loan Parties, sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) transactions at prices and on terms and conditions not less favorable taken as a whole to the Loan Parties than could be obtained on an arm’s length basis from unrelated third parties; (b) payment of (i) compensation and benefits to officers and employees and (ii) directors’ (or managers or equivalent) fees and indemnities, including, in each case of clauses (i) and (ii), the payment of incentive bonuses and other compensation, if any, paid or payable to employees and/or members of the board of managers (or equivalent); (c) [reserved]; (d) transactions with Affiliates that were entered into prior to the Closing Date, as shown on Schedule 6.16 or any amendment thereto or renewals or extension thereof to the extent such an amendment is not adverse to the Lenders in any material respect; (e) Investments permitted under Section 6.05(a), (e), (i), (k) and (l); (f) Restricted Payments permitted under Section 6.04; (g) Indebtedness permitted under Sections 6.01(j) and (k); (h) sales and issuances of Equity Interests of Holdings otherwise permitted under the Loan Documents; (i) transactions where the only consideration paid by any Loan Party consists of Equity Interests of Holdings and such transaction is not otherwise prohibited by the Loan Documents; and (j) reimbursement of out-of-pocket expenses incurred by Permitted Investors (or any of their principals, employees, agents or other representatives) in connection with its performance of management, consulting, monitoring, financial advisory or other services provided to Holdings and its Subsidiaries.

 

Section 6.17.                          Plans. Become party to any Multiemployer Plan other than any in existence on the Closing Date.

 

Section 6.18.                          [Reserved].

 

Section 6.19.                          Limited Activities. (i) With respect to Holdings, engage in any business activities or have any assets or liabilities other than its ownership of the Equity Interests of Parent and activities and liabilities incidental thereto, including its liabilities pursuant to the Guarantee and Collateral Agreement and the Pledge Agreement; provided Holdings may incur Indebtedness and Liens and make Restricted Payments to the extent permitted by the other Sections of this Article 6; provided, further that Holdings will not create, incur, assume or permit to exist any Lien (other than (i) Liens created under the Loan Documents and (ii) Liens of a type described in clause (c), (d), (g), (j)(i), (j)(ii), (j)(vi), (j)(vii), (j)(viii), (k) (it being understood that such Lien will be terminated substantially concurrently with the consummation of the Transactions) and (u) of Section 6.02) on any Equity Interests issued by Parent, and (ii) with respect to Parent, have any direct Subsidiary other than Borrower.

 

ARTICLE 7

 

EVENTS OF DEFAULT

 

Section 7.01.                          Events of Default. In case of the happening of any of the following events (“Events of Default”):

 

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(a)                                 any representation or warranty made or deemed made in or in connection with any Loan Document hereunder, or any representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect when so made, deemed made or furnished;

 

(b)                                 default shall be made in the payment of any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;

 

(c)                                  default shall be made in the payment of any interest on any Loan or any fee or any other amount (other than an amount referred to in (b) above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of five Business Days;

 

(d)                                 default shall be made in the due observance or performance by any Loan Party of any covenant, condition or agreement contained in Section 5.01(a), 5.05(d) or 5.08 or in Article 6;

 

(e)                                  default shall be made in the due observance or performance by any Loan Party of any covenant, condition or agreement contained in any Loan Document (other than those specified in (b), (c) or (d) above) and such default shall continue unremedied for a period of 30 days after the earlier of (i) notice thereof from the Administrative Agent to the Borrower (which notice shall also be given at the request of any Lender) or (ii) knowledge thereof of the Borrower;

 

(f)                                   (i) any Loan Party shall fail to pay any principal or interest, regardless of amount, due in respect of any Material Indebtedness, when and as the same shall become due and payable or (ii) any other event or condition (other than, in the case of the following clause (A), an event or condition described in clause (e) of the definition of “Change of Control”) occurs that (A) enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (B) results in any Material Indebtedness becoming due prior to its scheduled maturity; provided that this clause (ii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; provided, further that with respect to the Revolving Credit Facility, no default or event of default thereunder shall constitute an Event of Default under this clause (f) unless the maturity of the loans under the Revolving Credit Facility have been accelerated by the lenders thereunder (or the commitments under the Revolving Credit Facility have been terminated);

 

(g)                                  an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of Holdings, Parent, Borrower or any Subsidiary, or of a substantial part of the property or assets of Holdings, Parent, Borrower or any Subsidiary, under Title 11 of the United States Code,

 

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as now constituted or hereafter amended, or any other Debtor Relief Law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings, Parent, Borrower or any Subsidiary or for a substantial part of the property or assets of Holdings, Parent, Borrower or any Subsidiary or (iii) the winding-up or liquidation of Holdings, Parent, Borrower or any Subsidiary; and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;

 

(h)                                 Holdings, Parent, Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Debtor Relief Law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings, Parent, Borrower or any Subsidiary or for a substantial part of the property or assets of Holdings, Parent, Borrower or any Subsidiary, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;

 

(i)                                     one or more judgments shall be rendered against any Loan Party or any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any Loan Party to enforce any such judgment and such judgment either (i) is for the payment of money in an aggregate amount in excess of $30,000,000 (net of any insurance coverage therefor as to which the insurer has been notified of such judgment and does not deny coverage) or (ii) is for injunctive relief and could reasonably be expected to result in a Material Adverse Effect;

 

(j)                                    an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other such ERISA Events, could reasonably be expected to result in liability of the Borrower in an aggregate amount exceeding $30,000,000;

 

(k)                                 any Guarantee under the Guarantee and Collateral Agreement for any reason shall cease to be in full force and effect (other than in accordance with its terms), or any Guarantor shall deny in writing that it has any further liability under the Guarantee and Collateral Agreement (other than as a result of the discharge of such Guarantor in accordance with the terms of the Loan Documents);

 

(l)                                     any security interest in any material portion of the Collateral purported to be created by any Security Document shall cease to be, or shall be asserted by the Borrower or any other Loan Party not to be, a valid, perfected, second priority interest therein (subject to Permitted Liens) and;

 

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(m)                                     a Change of Control shall have occurred;

 

then, and in every such event (other than an event with respect to Holdings, the Parent or the Borrower described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding; and in any event with respect to Holdings, the Parent or the Borrower described in paragraph (g) or (h) above, the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued fees and all other liabilities of Holdings, the Parent or the Borrower, as applicable, accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by Holdings, the Parent and the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.

 

ARTICLE 8

THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT; ETC.

 

Each Lender hereby irrevocably appoints the Administrative Agent and the Collateral Agent (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”) its agent and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article VIII are solely for the benefit of the Agents and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “Agent” or “agent” herein or in any other Loan Documents (or any other similar term) with reference to an Agent, is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between the contracting parties. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to (i) execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and (ii) negotiate, enforce or the settle any claim, action or proceeding affecting the Lenders in their capacity as such, at the direction of the Required Lenders, which negotiation, enforcement or settlement will be binding upon each Lender.

 

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The institution serving as the Administrative Agent and/or the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or any other advisory capacity for, and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.

 

Neither Agent shall have any duties or obligations except those expressly set forth in the Loan Documents and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) neither Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that such Agent is instructed in writing to exercise by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.08); provided that no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any applicable Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) except as expressly set forth in the Loan Documents, neither Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose, any information relating to Holdings, Parent, Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity. Neither Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.08) or in the absence of its own bad faith, its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. Neither Agent shall be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and neither Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent.

 

Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent may also rely upon any statement made to it orally or by telephone

 

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and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Loans as well as activities as Agent. No Agent shall be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

 

Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If no successor Agent has been appointed pursuant to the immediately preceding sentence by the Resignation Effective Date, such Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent and/or Collateral Agent, as the case may be. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent (other than any rights to indemnity payments owed to the retiring Agent), and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while acting as Agent.

 

Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and

 

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information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.

 

In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Agents and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under the Loan Documents) allowed in such proceeding, and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the Agents (other than the Administrative Agent) to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the other Agents, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Agents under the Loan Documents.

 

The Secured Parties irrevocably authorize each Agent, at its option and in its discretion, (i) to release any Lien on any property granted to or held by such Agent under any Loan Document (x) upon payment in full of all Obligations (other than contingent indemnification obligations), (y) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under the Loan Documents, or (z) subject to Section 9.08, if approved, authorized or ratified in writing by the Required Lenders; (ii) to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(c); and (iii) to release any Guarantor from its obligations under the Guarantee of the Obligations if such Person ceases to be a Loan Party as a result of a transaction permitted under the Loan Documents. Upon written request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Subsidiary from its obligations under the Loan Documents pursuant to this paragraph. The Collateral Agent shall not be responsible for, or have a duty to, ascertain or inquire into any representation or warranty regarding the existence, value or collectability of any Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Collateral Agent be

 

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responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.

 

Notwithstanding any other provision of this Agreement or any provision of any other Loan Document, each of the Lead Arranger, the Syndication Agent and the Documentation Agent are named as such for recognition purposes only, and in their respective capacities as such shall have no duties, responsibilities or liabilities with respect to this Agreement or any other Loan Document; it being understood and agreed that each of the Lead Arranger, the Syndication Agent and the Documentation Agent shall be entitled to all indemnification and reimbursement rights in favor of the Agents provided herein and in the other Loan Documents. Without limitation of the foregoing, neither the Lead Arranger nor the Bookrunner in their respective capacities as such shall, by reason of this Agreement or any other Loan Document, have any fiduciary relationship in respect of any Lender, Loan Party or any other Person.

 

ARTICLE 9

MISCELLANEOUS

 

Section 9.01.                          Notices; Electronic Communications. Except for notices and other communications expressly permitted to be given by telephone hereunder (and except as provided in this Section 9.01), notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax, as follows:

 

(a)                                         if to Holdings, Parent or the Borrower, to it at Neff LLC, 3750 N.W. 87th Avenue, Suite 400, Miami, Florida 33178, Attn: Mark Irion, Chief Financial Officer, Fax No. 305-513-4156, Email: mirion@neffcorp.com;

 

(b)                                         if to the Administrative Agent, to Credit Suisse AG, Cayman Islands Branch, Eleven Madison Avenue, 23rd Floor, New York, NY 10010, Fax No. 212-322-2291, Attn: Sean Portrait— Agency Manager, Email: agency.loanops@credit-suisse.com;

 

(c)                                          if to the Collateral Agent, to Credit Suisse AG, Cayman Islands Branch, Eleven Madison Avenue, 23rd Floor, New York, NY 10010, Telephone No. 212-538-3525, Attn: Loan Operations — Boutique Management, Nirmala Durgana, Email: list.ops-collateral@credit-suisse.com;

 

(d)                                         if to a Lender, to it at its address (or fax number) set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender shall have become a party hereto.

 

All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service or sent by fax or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in

 

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accordance with this Section 9.01. As agreed to among the Borrower, the Administrative Agent and the applicable Lenders from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable Person provided from time to time by such Person.

 

The Borrower hereby agrees, unless directed otherwise by the Administrative Agent or unless the electronic mail address referred to below has not been provided by the Administrative Agent to the Borrower, that it will, or will cause its Restricted Subsidiaries to, provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents or to the Lenders under Article V, including all notices, requests, financial statements, financial and other reports, certificates and other information materials (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium that is properly identified in a format acceptable to the Administrative Agent to an electronic mail address as directed by the Administrative Agent. In addition, Holdings, Parent and the Borrower agree, and agree to cause the Subsidiaries, to continue to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in the Loan Documents but only to the extent requested by the Administrative Agent.

 

Holdings, Parent and the Borrower hereby acknowledge that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of Holdings, Parent and the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to Holdings, Parent, the Borrower or their securities or subsidiaries) (each, a “Public Lender”). Holdings, Parent and the Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Holdings, Parent and the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Holdings, Parent and the Borrower or their securities or subsidiaries for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.16); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC”, unless the Borrower notifies the Administrative Agent promptly prior to their intended distribution that any such document contains material non-public information: (1) the Loan Documents, (2) notification of changes in the terms of the Loans and (3) all information delivered pursuant to Section 5.04(a) and (b).

 

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Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to Holdings, Parent and the Borrower or their securities and subsidiaries for purposes of United States Federal or state securities laws.

 

THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH PERSON’S GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT.

 

The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

 

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Section 9.02.                          Survival of Agreement. All covenants, agreements, representations and warranties made by Holdings, Parent and the Borrower herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and shall survive the making of the Loans by the Lenders, regardless of any investigation made by the Lenders or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid. The provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral Agent or any Lender.

 

Section 9.03.                          Binding Effect. This Agreement shall become effective when it shall have been executed by Holdings, Parent and the Borrower, and the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto.

 

Section 9.04.                          Successors and Assigns. (a) Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of Holdings, the Parent, the Borrower, the Administrative Agent, the Collateral Agent, or the Lenders that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns.

 

(b)                                 Each Lender may assign to one or more Eligible Assignees all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of the Loans at the time owing to it), with the prior written consent of the Administrative Agent (not to be unreasonably withheld or delayed) and the Borrower (not to be unreasonably withheld or delayed; provided, however, that (i) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof, (ii) the consent of the Borrower shall not be required (A) for assignments to Lenders or Affiliate of a Lender and a Related Fund or (B) after the occurrence and during the continuance of an Event of Default under Section 7.01(b), (c), (g) or (h); (iii) the amount of Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall be in an integral multiple of, and not less than, $1,000,000 (or, if less, the entire remaining amount of such Lender’s Loans); provided that simultaneous assignments by two or more Related Funds shall be combined for purposes of determining whether the minimum assignment requirement is met, (iv) the parties to each assignment shall (A) execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent or (B) if previously agreed with the Administrative Agent, manually execute and deliver to the Administrative Agent an

 

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Assignment and Acceptance, and, in each case, shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent), and (v) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire (in which the assignee shall designate one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws) and all applicable tax forms. Upon acceptance and recording pursuant to paragraph (e) of this Section 9.04, from and after the effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement and (B) the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any fees accrued for its account and not yet paid); provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Notwithstanding the foregoing or anything to the contrary herein, no Lender shall be permitted to assign or transfer any portion of its rights and obligations under this Agreement to (A) any Disqualified Institution, (B) any Defaulting Lender or any of its Subsidiaries, or any person who, upon becoming a Lender hereunder, would constitute any of the foregoing persons described in this clause (B), or (C) a natural person. Each Loan Party and the Lenders acknowledge and agree that the Administrative Agent shall not have any responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Institution and the Administrative Agent shall have no liability with respect to any assignment made to a Disqualified Institution. Any assigning Lender shall, in connection with any potential assignment, provide to the Borrower a copy of its request (including the name of the prospective assignee) concurrently with its delivery of the same request to the Administrative Agent irrespective of whether or not an Event of Default under Section 7.01(b), (c), (g) or (h) has occurred and is continuing. The Borrower shall make available to any Lender upon request of such Lender the list of Disqualified Institutions. Any and all assignments to Disqualified Institutions shall be subject to Section 2.21.

 

(c)                                  By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that its Commitment and the outstanding balances of its Loans, without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as set forth in (i) above, such

 

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assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Subsidiary or the performance or observance by the Borrower or any Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is an Eligible Assignee legally authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.

 

(d)                                 The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error and the Borrower, the Administrative Agent, the Collateral Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, the Collateral Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

 

(e)                                  Upon its receipt of, and consent to, a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) above, if applicable, and the written consent of the Administrative Agent and, if required, the Borrower to such assignment and any applicable tax forms, the Administrative Agent shall (i) accept such Assignment and Acceptance and (ii) record the information contained therein in the Register. No assignment shall be effective unless it has been recorded in the Register as provided in this paragraph (e).

 

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(f)                                   Each Lender may without the consent of the Borrower or the Administrative Agent sell participations to one or more banks or other Persons (other than a natural Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (a “Participant”) in all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other Persons shall be entitled to the benefit of the cost protection provisions contained in Sections 2.14, 2.16 and 2.20 (subject to the requirements and limitations therein, including the requirements under Section 2.20(f) (it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Lender)) to the same extent as if they were Lenders and had acquired their interests by assignment pursuant to Section 9.04(b); provided that such Participant (A) agrees to be subject to the provisions of Section 2.21 as if it were an assignee under paragraph (b) of this Section 9.04; and (B) shall not be entitled to receive any greater payment under Sections 2.14 or 2.20 with respect to any participation than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation, (iv) each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.21 with respect to any Participant and (v) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce the obligations of the Borrower relating to the Loans and to approve any amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers decreasing any fees payable to such participating bank or Person hereunder or the amount of principal of or the rate at which interest is payable on the Loans in which such participating bank or Person has an interest, extending any scheduled principal payment date or date fixed for the payment of interest on the Loans in which such participating bank or Person has an interest, increasing or extending the Commitments in which such participating bank or Person has an interest or releasing any Guarantor (other than in connection with the sale of such Guarantor in a transaction permitted by Section 6.06 or 6.09) or all or substantially all of the Collateral). For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 9.05(c) with respect to any payments made by such Lender to its Participant(s). To the extent permitted by law, each participating bank or other Person also shall be entitled to the benefits of Section 9.06 as though it were a Lender, provided such participating bank or other Person agrees to be subject to Section 2.18 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, or its other

 

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obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

 

(g)                                  Any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or participant or proposed assignee or participant any information relating to the Loan Parties furnished to such Lender by or on behalf of the Loan Parties; provided that, prior to any such disclosure of information designated by the Borrower as confidential, each such assignee or participant or proposed assignee or participant shall agree (pursuant to customary procedures and subject to customary exceptions) to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section 9.16.

 

(h)                                 Any Lender may at any time assign all or any portion of its rights under this Agreement to secure extensions of credit to such Lender or in support of obligations owed by such Lender; provided that no such assignment shall release a Lender from any of its obligations hereunder or substitute any such assignee for such Lender as a party hereto.

 

(i)                                     Except to the extent a merger expressly permitted under Section 6.09(b) constitutes an assignment by operation of law, the Borrower shall not assign or delegate any of its rights or duties hereunder without the prior written consent of the Administrative Agent and each Lender, and any attempted assignment without such consent shall be null and void.

 

(j)                                    In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the

 

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assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

 

(k)                                 Notwithstanding anything to the contrary contained herein, any Lender may assign all or any portion of its Loans hereunder to any Person who, after giving effect to such assignment, would be an Affiliated Lender in accordance with Section 9.04(b); provided that:

 

(i)                             such assignment is made pursuant to (A) an open market purchase (including, for the avoidance of doubt, any purchase made during the initial syndication of the Loans) on a non-pro rata basis or (B) a Dutch Auction (or other procedures approved by the Administrative Agent) open to all Lenders on a pro rata basis;

 

(ii)                            in the case of an assignment to a Non-Debt Fund Affiliate, the assigning Lender and such Non-Debt Fund Affiliate purchasing such Lender’s Loans shall execute and deliver to the Administrative Agent an Assignment and Acceptance; and

 

(iii)                             in the case of an assignment to an Affiliated Lender, at the time of such assignment and after giving effect to such assignment, Affiliated Lenders (including, for the avoidance of doubt, Debt Fund Affiliates and Non-Debt Fund Affiliates) shall not, in the aggregate, hold an aggregate principal amount of Loans (and participating interests in Loans) in excess of 25% of the aggregate principal amount of all Loans then outstanding.

 

To the extent not previously disclosed to the Administrative Agent, the Borrower shall, upon reasonable request of the Administrative Agent, report to the Administrative Agent the amount of Loans held by Affiliated Lenders and the identity of such holders.

 

(l)                                          Notwithstanding anything in Section 9.08 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) consented (or not consented) to any plan of reorganization, (iii) otherwise acted on any matter related to any Loan Document or (iv) directed or required the Agents or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document (collectively, “Required Lender Consent Items”), a Non-Debt Fund Affiliate shall be deemed to have voted its interest as a Lender in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Non-Debt Fund Affiliates, unless the Required Lender Consent Item relates to a waiver, amendment or modification of the type described in the proviso to Section 9.08(b) or the result of such Required Lender Consent Item would otherwise reasonably be expected to deprive such Non-Debt Fund Affiliate of its pro rata share (compared to Lenders which are not Non-Debt Fund Affiliates) of any payments to which such Non-Debt Fund Affiliate is entitled under the Loan Documents without such Non-Debt Fund Affiliate providing its consent (in which case for purposes of such vote such

 

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Non-Debt Fund Affiliate shall have the same voting rights as other Lenders which are not Non-Debt Fund Affiliates).

 

(m)                                       Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign all or a portion of its Loans to any Purchasing Borrower Party in accordance with Section 9.04(b); provided that:

 

(i)                             the assigning Lender and the Purchasing Borrower Party purchasing such Lender’s Loans, as applicable, shall execute and deliver to the Administrative Agent an Assignment and Acceptance;

 

(ii)                            such assignment shall be made (A) pursuant to a Dutch Auction (or other procedures approved by the Administrative Agent) open to all Lenders on a pro rata basis or (B) pursuant to other procedures approved by the Administrative Agent open to one or more Lenders on a pro rata basis or to all Lenders on a pro rata basis;

 

(iii)                             immediately after giving effect to any such purchase, no Default or Event of Default shall exist;

 

(iv)                           gain from any such purchase shall not increase Consolidated EBITDA;

 

(v)                           no proceeds from Indebtedness (including, without limitation, loans under the Revolving Credit Facility) shall be used to fund any such purchase; and

 

(vi)                           the aggregate outstanding principal amount of the Loans shall be deemed reduced by the full par value of the aggregate principal amount of the Loans purchased pursuant to this Section 9.04(m).

 

(n)                                        Notwithstanding anything to the contrary contained herein, no Affiliated Lender shall have any right to (i) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not then present, (ii) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among Administrative Agent and one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders pursuant to this Agreement) or (iii) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of the Administrative Agent or any other such Lender under the Loan Documents in the absence, with respect to any such Person, of the gross negligence, bad faith or willful misconduct by such Person and its Related Parties (as determined by a court of competent jurisdiction by final and nonappealable judgment).

 

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Section 9.05.                          Expenses; Indemnity. (a) The Borrower agrees, to pay all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and the Collateral Agent in connection with the syndication of the Loans and the preparation and administration of this Agreement and the other Loan Documents or in connection with any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated) or incurred by the Administrative Agent, the Collateral Agent or any Lender in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents or in connection with the Loans made hereunder, including the reasonable and documented fees, charges and disbursements of Davis Polk & Wardwell LLP, counsel for the Administrative Agent and the Collateral Agent, and, in connection with any such enforcement or protection, the fees, charges and disbursements of any other counsel for the Administrative Agent, the Collateral Agent or any Lender.

 

(b)                                         The Borrower agrees to indemnify the Administrative Agent, the Collateral Agent, each Lender and each such persons respective officers, directors employees agents advisors representatives controlling persons members successors and permitted assigns (each such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable and documented fees, charges and disbursements, one firm of counsel for the Indemnitees collectively and, if reasonably necessary, a single local counsel in each appropriate jurisdiction and one or more special counsel (and, in the case of a conflict of interest, one additional counsel to the affected Indemnitee and, if reasonably necessary, one additional local counsel to the affected Indemnitee in any relevant jurisdiction)) incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated thereby, the performance by the parties thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated thereby (including the syndication of the Loans), (ii) the use of the proceeds of the Loans, (iii) any actual or alleged presence or Environmental Release of Hazardous Materials on, at, under, to or from any property currently or formerly owned, leased or operated by any Loan Party or any of its respective subsidiaries, or any Environmental Notice or Environmental Liability related in any way to any Loan Party or any of its respective subsidiaries or their respective current or former Properties or Real Estate, or (iv) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted primarily from the bad faith, material breach of this Agreement, gross negligence or willful misconduct of such Indemnitee or its Related Parties or (B) arise out of or in connection with any claim that does not involve any act or omission by the Borrower or any of its Affiliates and is a dispute solely among Indemnitees (other than a

 

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claim against an Agent, the Lead Arranger or Bookrunner, each in its capacity as such). Notwithstanding the foregoing, in no event shall the Borrower have any liability with respect to the settlement or compromise of any claim or proceeding effected without the Borrower’s prior written consent; provided, however, if at any time an Indemnitee shall have requested that the Borrower reimburse such Indemnitee for legal or other expenses in connection with investigating, responding to or defending any proceeding covered by this Section 9.05, the Borrower shall be liable for any settlement of any proceeding effected without the Borrower’s prior written consent if (A) such settlement is entered into more than 30 days after receipt by the Borrower of such written request for reimbursement and (B) the Borrower shall not have reimbursed such Indemnitee in accordance with such written request prior to the date of such settlement. This Section 9.05(b) shall not apply with respect to Taxes other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

 

(c)                                          To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent or the Collateral Agent under paragraph (a) or (b) of this Section 9.05, each Lender severally agrees to pay to the Administrative Agent or the Collateral Agent, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent or the Collateral Agent. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the outstanding Loans at the time (in each case, determined as if no Lender were a Defaulting Lender).

 

(d)                                         To the extent permitted by applicable law, (i) the Borrower shall not assert, and hereby waives, any claim against any Indemnitee on any theory of liability and (ii) each Agent and each Lender shall not assert, and hereby waives, any claim against any of the Loan Parties on any theory of liability, in each case, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof; provided that this Section 9.05(d) shall not otherwise limit any indemnification obligations under the other provisions of this Section 9.05.

 

(e)                                          The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral Agent or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor.

 

Section 9.06.                          Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, except to the extent prohibited by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held, and other

 

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obligations (in whatever currency) at any time owing, by such Lender or any such Affiliate, to or for the credit or the account of the Borrower or any other Loan Party against any of and all the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement and other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.18 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of setoff) that such Lender may have. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

 

Section 9.07.                          Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

 

Section 9.08.                          Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Collateral Agent or any Lender in exercising any power or right hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.

 

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(b)                                         Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders); provided, however, that no such agreement shall (i) decrease the principal amount of, or extend the maturity of or any scheduled principal payment date or date for the payment of any interest or premium on any Loan, or waive or excuse any such payment or any part thereof, or decrease the rate of interest or premium on any Loan, without the prior written consent of each Lender directly adversely affected thereby, (ii) increase or extend the Commitment or decrease or extend the date for payment of any fees or premiums of any Lender without the prior written consent of such Lender (it being understood that a waiver of any condition precedent set forth in Section 4.02 shall not constitute an increase of any Commitment of any Lender), (iii) amend or modify the pro rata requirements of Section 2.17, the provisions of Section 9.04(i) or the provisions of this Section 9.08 or release any Guarantor (other than in connection with the sale of such Guarantor in a transaction permitted by Section 6.06) or all or substantially all of the Collateral, without the prior written consent of each Lender, (iv) change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of collateral and payments due to Lenders holding Loans of one tranche differently from the rights of Lenders holding Loans of any other tranche without the prior written consent of Lenders holding a majority in interest of the outstanding Loans of each adversely affected tranche, (v) reduce the percentage contained in the definition of the term “Required Lenders” without the prior written consent of each Lender (it being understood that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Commitments on the date hereof); provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Collateral Agent.

 

(c)                                          The Administrative Agent and the Borrower may amend any Loan Document to correct administrative errors or omissions, or to effect administrative changes that are not adverse to any Lender. Notwithstanding anything to the contrary contained herein, such amendment shall become effective without any further consent of any other party to such Loan Document.

 

(d)                                         Notwithstanding anything in this Agreement or any other Loan Document to the contrary, the Borrower may enter into Extension Amendments in accordance with Section 2.22 and Incremental Facility Amendments in accordance with Section 2.24, and such Extension Amendments and Incremental Facility Amendments shall be effective to amend the terms of this Agreement and the other applicable Loan Documents, in each case without any further action or consent of any other party to any Loan Document.

 

Section 9.09.                          Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable

 

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law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan or participation in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan or participation but were not payable as a result of the operation of this Section 9.09 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or participations or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

 

Section 9.10.                          Entire Agreement. This Agreement and the other Loan Documents constitute the entire contract between the parties relative to the subject matter hereof. Any other previous agreement among the parties with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any Person (other than the parties hereto and thereto, their respective successors and assigns permitted hereunder and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent and the Lenders) any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents.

 

Section 9.11.                          WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.

 

Section 9.12.                          Severability. In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

 

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Section 9.13.                          Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 9.03. Delivery of an executed signature page to this Agreement by facsimile transmission or in electronic (i.e., “pdf” or “tif”) format shall be as effective as delivery of a manually signed counterpart of this Agreement.

 

Section 9.14.                          Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

 

Section 9.15.                          Jurisdiction; Consent to Service of Process. (a) Holdings, Parent and the Borrower hereby irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against any Agent, any Lender, or any Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of New York sitting in New York County in the borough of Manhattan, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the extent permitted by applicable law, such Federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, the Collateral Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against Holdings, Parent, the Borrower or their respective properties in the courts of any jurisdiction.

 

(b)                                         Holdings, Parent and the Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

(c)                                          Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

 

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Section 9.16.                          Confidentiality. Each of the Administrative Agent, the Collateral Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (excluding, in the case of clauses (a), (d), (e) and (h) to Disqualified Institutions) (a) to its and its Affiliates’ Related Parties on a confidential basis (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority or quasi-regulatory authority (such as the National Association of Insurance Commissioners), in which case the Administrative Agent, the Collateral Agent or such Lender, as applicable, shall use commercially reasonable efforts to inform the Loan Parties thereof prior to such disclosure to the extent not prohibited by law, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) in connection with the exercise of any remedies hereunder or under the other Loan Documents or any suit, action or proceeding relating to the enforcement of its rights hereunder or thereunder, (e) subject to an agreement containing provisions no less restrictive than those of this Section 9.16, to (1) any actual or prospective assignee of or participant in any of its rights or obligations under this Agreement and the other Loan Documents or (2) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to Holdings, Parent, the Borrower or any Subsidiary or any of their respective obligations, (f) with the consent of the Borrower, (g) to the extent such Information becomes (x) publicly available other than as a result of a breach of this Section 9.16, or (y) becomes available to the Administrative Agent, any Lender or any of their Affiliates on non-confidential basis form a source other than the Loan Parties to the extent the source is not, to the knowledge of the Administrative Agent, Lender or Affiliate, subject to contractual or fiduciary confidentiality obligations owing to the Loan Parties or any of their Related Parties, (h) on a confidential basis to (1) any rating agency in connection with rating the Borrower or its Subsidiaries or the Loans or (2) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans or (i) to market data collectors, similar services, providers to the lending industry and service providers to the Administrative Agent; provided that the disclosure of such information is necessary to the administration and management of this Agreement and the Loan Documents. For the purposes of this Section, “Information” shall mean all information received from Holdings, Parent or the Borrower and related to Holdings, Parent, the Borrower or its business or affiliates, other than any such information that was available to the Administrative Agent, the Collateral Agent or any Lender on a nonconfidential basis prior to its disclosure by Holdings, Parent or the Borrower; provided that, in the case of Information received from Holdings, Parent or the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 9.16 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord its own confidential information.

 

Section 9.17.                          Lender Action. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any

 

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Loan Party or any other obligor under any of the Loan Documents (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, unless expressly provided for herein or in any other Loan Document, without the prior written consent of the Administrative Agent. The provisions of this Section 9.17 are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party.

 

Section 9.18.                          USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes the name and address of the Borrower and each Guarantor and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and each Guarantor in accordance with the USA PATRIOT Act.

 

Section 9.19.                          No Fiduciary Duty. Each Agent, the Arranger, each Lender and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”) may have economic interests that conflict with those of the Loan Parties, their equityholders and/or their Affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Loan Party, its equityholders or its Affiliates, on the other. The Loan Parties acknowledge and agree that (a) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan Parties, on the other, and (b) in connection therewith and with the process leading thereto, (i) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its equityholders or its Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its equityholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (ii) each Lender is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, equityholders, creditors or any other Person. Each Loan Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Loan Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto

 

Section 9.20.                          Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually

 

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executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

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

 

	
 
    	
NEFF HOLDINGS LLC,
    
	
 
    	
as Holdings
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Mark Irion
    
	
 
    	
 
    	
Name:
    	
Mark Irion
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer, 
    
	
 
    	
 
    	
 
    	
Treasurer and Secretary
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
NEFF LLC,
    
	
 
    	
as Parent
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Mark Irion
    
	
 
    	
 
    	
Name:
    	
Mark Irion
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer,
    
	
 
    	
 
    	
 
    	
Treasurer and Secretary
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
NEFF RENTAL LLC,
    
	
 
    	
as Borrower
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Mark Irion
    
	
 
    	
 
    	
Name:
    	
Mark Irion
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer,
    
	
 
    	
 
    	
 
    	
Treasurer and Secretary
    


 

[Signature Page to Second Lien Credit Agreement]

 











 

	
 
    	
CREDIT SUISSE AG, CAYMAN ISLANDS   BRANCH, as Administrative Agent and Collateral Agent
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Mikhail Faybusovich
    
	
 
    	
 
    	
Name:
    	
MIKHAIL FAYBUSOVICH
    
	
 
    	
 
    	
Title:
    	
AUTHORIZED SIGNATORY
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Tyler R. Smith
    
	
 
    	
 
    	
Name:
    	
Tyler R. Smith
    
	
 
    	
 
    	
Title:
    	
Authorized Signatory
    
	
 
    	
 
    
	
 
    	
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Mikhail Faybusovich
    
	
 
    	
 
    	
Name:
    	
MIKHAIL FAYBUSOVICH
    
	
 
    	
 
    	
Title:
    	
AUTHORIZED SIGNATORY
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Tyler R. Smith
    
	
 
    	
 
    	
Name:
    	
Tyler R. Smith
    
	
 
    	
 
    	
Title:
    	
Authorized Signatory
    


 

[Signature Page to Second Lien Credit Agreement]

 













	
  

  	
  #85938570v6
  Schedule 1.01 GUARANTORS None. confidential confidential 

  






 















	
  

  	
  2 #85938570v6
  Schedule 2.01 LENDERS AND COMMITMENTS Lender Closing Date Commitment Credit
  Suisse AG, Cayman Islands Branch $575,000,000 Total: $575,000,000
  confidential confidential 

  






 















	
  

  	
  #85938570v6
  Schedule 3.08 SUBSIDIARIES Legal Name Type of Entity State of Formation
  Number and Class of Authorized Shares Issued Equity Interests Holders of
  Equity Interests Neff Holdings LLC Limited Liability Company Delaware See
  below See below See below Neff LLC Limited Liability Company Delaware 100
  Common Units 100 Common Units Neff Holdings LLC (100%) Neff Rental LLC
  Limited Liability Company Delaware 100 Common Units 100 Common Units Neff LLC
  (100%) Neff Rental Finance Corp. Corporation Delaware 1000 Shares 1000 Shares
  Neff Rental LLC (100%) Capitalization of Holdings Holder of Class A Units of
  Neff Holdings LLC Unit Certificate No. No. Units Issued Fully-Diluted
  Percentage Ownership Wayzata Opportunities Fund II, L.P. A1-1 (for 7,610,800
  Units) and A1-3 (for 1,363,796) 8,974,596 89.940% Wayzata Opportunities Fund
  Offshore II, L.P. A1-4 225,404 2.259% Total: 9,200,000 92.199% Options
  Exercisable into Class B Limited Voting Common Units (“Class B Units”) of
  Holdings: Holder of Options of Neff Holdings LLC Number of Options (Expressed
  in Number of Class B Units Issuable Upon Exercise) Fully-Diluted Percentage
  Ownership Graham Hood 218,000 2.185% Mark Irion 130,000 1.303% Wes Parks
  60,000 0.601% Henry Lawson 60,000 0.601% John Anderson 60,000 0.601% Brad
  Nowell 37,000 0.371% Steven Settelmayer 37,000 0.371% Paula Papamarcos 31,000
  0.311% Steve Michaels 37,000 0.371% confidential confidential 

  






 















	
  

  	
  4 #85938570v6
  Tom Sutherland 31,000 0.310% Tammy Parham 14,000 0.14% Jim Horn 14,000 0.14%
  Bryant Becton 14,000 0.14% Bobby Comer 14,000 0.14% Robert C. Singer 8,801
  0.088% James Continenza 12,573 0.126% Total: 778,374 7.801% Agreements
  binding on holders of Equity Interests 1. Amended and Restated Limited
  Liability Company Agreement of Neff Holdings LLC, dated October 1, 2010, by
  and among Holdings and the members of Holdings, as amended, supplemented or
  otherwise modified from time to time. 2. Amended and Restated Limited
  Liability Company Agreement of Neff LLC, dated October 1, 2010, executed by
  Holdings, as amended, supplemented or otherwise modified from time to time.
  3. Amended and Restated Limited Liability Company Agreement of Neff Rental
  LLC, dated October 1, 2010, executed by Parent, as amended, supplemented or
  otherwise modified from time to time. 4. Neff Holdings LLC Management Equity
  Plan dated October 1, 2010, as amended, supplemented or otherwise modified
  from time to time. 5. Class B Unit Option Award Agreements between Holdings
  and each recipient of options to acquire Class B Units (as described above).
  Acquisitions in the five years preceding the Closing Date On October 1, 2010,
  Holdings, Parent and the Borrower purchased substantially all of the assets
  of Neff Corp., Neff Rental LLC, Neff Finance Corp., Neff Rental, Inc., Neff
  Holdings Corp. and Neff Holdings LLC (collectively, the “Debtors”) in
  connection with the Debtors’ cases under chapter 11 of title 11 of the United
  States Code. confidential confidential 

  






 















	
  

  	
  #85938570v6
  Schedule 3.09 LITIGATION None. confidential confidential 

  






 















	
  

  	
  6 #85938570v6
  Schedule 3.10 RESTRICTIVE AGREEMENTS 1. Amended and Restated Senior Secured
  Credit Agreement, dated as of October 1, 2010, as further amended, by and
  among Neff LLC, Neff Holdings LLC, the other credit parties thereto from time
  to time, Bank of America, N.A. and the other financial institutions party
  thereto from time to time. 2. Indenture, dated as of May 13, 2011, between
  Neff Rental LLC, Neff Rental Finance Corp., the guarantors party thereto from
  time to time, and Wilmington Trust FSB, pursuant to which the Existing Notes
  were issued. 1 1 The restrictions in this Restrictive Agreement will no
  longer be in effect upon the consummation of the Transactions. confidential
  confidential 

  






 















	
  

  	
  7 #85938570v6
  Schedule 3.14 TAX RETURNS • Audit by the Office of Tax Collector for
  Mecklenburg County, North Carolina of heavy equipment, short-term lease and
  rental taxes for the period January 1, 2011 through October 31, 2013 and
  short-term vehicle rental tax for the period February 1, 2011 through January
  31, 2014. • Audit by the Office of the Assessor for Orange County, California
  of property tax for fiscal years 2011 through 2014. • Audit by the Texas
  Comptroller of Public Accounts of limited sales, excise and use tax for the
  period October 1, 2010 through December 31, 2013. • On April 19, 2014, the
  Borrower received a notice from the Department of Revenue of the Commonwealth
  of Kentucky stating that the Borrower is considered to be operating within
  the Commonwealth of Kentucky and therefore the Borrower is required to file
  tax returns with the Commonwealth of Kentucky for fiscal years 2011 through
  2013, for which it is currently delinquent. confidential confidential 

  






 















	
  

  	
  #85938570v6
  Schedule 3.16 EMPLOYEE BENEFIT PLANS None. confidential confidential 

  






 















	
  

  	
  #85938570v6
  Schedule 3.17 ENVIRONMENTAL MATTERS None. confidential confidential 

  






 















	
  

  	
  #85938570v6
  Schedule 3.18 INSURANCE Policy Description Insurance Company Policy Number
  Policy Period Property Insurance: Provides coverage for real and personal
  property, contractors' equipment, equipment breakdown, business interruption,
  and extra expense. Alterra America Ins Co $10M limit; Scottsdale $15M xs $10M
  Zurich America-Boiler & Machinery MAXA6IM0049081 Scottsdale-TBD Boiler:
  BM0594885200 3/1/2014 to 3/1/2015 3/1/2014 to 3/1/2015 3/1/2014 to 3/1/2015
  Commercial General Liability: Covers liability for claims of other parties by
  reason of bodily injury, property damage, etc. Liberty Mutual Fire Ins.
  Company EB2-631-509976-023 3/1/2014 to 3/1/2015 Automobile Liability
  Coverage: Covers liability for claims of other parties by reason of bodily
  injury, property damage, etc. Liberty Mutual Fire Ins. Company
  AS2-631-509976-033 3/1/2014 to 3/1/2015 Worker's Compensation (All States
  except those in a state fund): Provides statutory coverage and employer's
  liability. EL is provided for states with monopolistic funds. Liberty
  Insurance Corporation WA7-63D-509976-013 3/1/2014 to 3/1/2015 Umbrella
  Policy: Provides coverage excess of that provided by the following policies:
  Commercial Gen. Liability, Automobile Liab., Employers' Liability, Employee
  Benefits Liab. North American Elite Ins Co (Swiss Re) UMB200013300 3/1/2014
  to 3/1/2015 Crime AIG TBD 3/1/2014 to 3/1/2015 Directors & Officers
  Liability including Employment Practices Liability & Fiduciary Liability
  National Union (AIG) 02-415-89-79 3/1/2014 to 3/1/2015 Excess D&O Starr
  Indemnity & Liability Company SISIXFL21039014 3/1/2014 to 3/1/2015
  Environmental -Commercial Pollution Legal Liability Chartis Specialty Insurance
  Co. PLC14490207 12/19/2011-12/19/2014 Environmental - Florida Storage Tanks
  Commerce & Industry (Chartis) through Program Managers 11943971
  12/19/2013-12/19/2014 Flood - Pompano Beach, FL Hartford Insurance Co of the
  Midwest 99043721982013 2/27/2013-2/27/2014 Flood - St. Rose, LA. American
  Bankers Insurance Co of FL AB00137830 4/30/2013-4/30/2014 Flood - Fort Myers,
  FL Homesite 3000018156 11/8/2013-11/8/2014 confidential confidential 

  






 















	
  

  	
  #85938570v6
  Schedule 3.19 UCC FILING OFFICES Secretary of State of the State of Delaware.
  confidential confidential 

  






 















	
  

  	
  #85938570v6
  Schedule 3.20(a) OWNED REAL PROPERTY Galveston County, Texas 128 21st Street
  South Texas City, TX 77590 confidential confidential 

  






 















	
  

  	
  13 #85938570v6
  Schedule 3.20(b) LEASED REAL PROPERTY Lease Real Property (All leased by Neff
  Rental LLC) Address City State Vendor/Landlord 6501 NW 77TH AVENUE MIAMI FL
  RMK PROPERTIES, LLC #28464 1860 MARTIN LUTHER KING JR BLVD WEST PALM BEACH FL
  LaMae Realty #17162 7400 COMMERCIAL CIRCLE PORT ST. LUCIE FL PSL INDUSTRIAL
  LLC #31262 1925 NW 18TH STREET POMPANO FL DUBLIN HOLDINGS, LLC #30639 11700
  METRO PARKWAY FT. MYERS FL G&M ESTATES USA, INC. (#17122) 4321 NORTH US
  HIGHWAY 301 TAMPA FL H & R LAND TRUST #12349 4321 NORTH US HIGHWAY 301
  FLORIDA REGION OFFICE FL H & R LAND TRUST #12349 109 BLUEGRASS COURT
  SARASOTA FL HUPP TRIPLE D IND., LLC #33552 4310 AIRPORT COMMERCE BLVD.
  TALLAHASSEE FL HUPP TRIPLE D IND., LLC #33507 11909 SOUTH ORANGE BLOSSOM
  TRAIL SOUTH ORLANDO FL CLARKSON FAMILY PARTNERSHIP #8846 3500 - A WEST KING
  STREET MERRITT ISLAND (COCOA) FL WUISMAN FAM LTD. PARTNERSHIP (# 17488) 500
  AERO LANE SANFORD FL CLARKSON PROPERTIES, INC. #25002 5955 PHILLIPS HIGHWAY
  JACKSONVILLE FL PHILLIPS HIGHWAY PROPERTY #26348 3678 LIDDELL ROAD DORAVILLE
  GA JIM L. LITTLE, INC. #32277 5035 HWY. 85 SOUTH FOREST PARK GA SULLIVAN
  PROPERTIES #1486 4406 DARIEN HIGHWAY BRUNSWICK GA JULIE BLAKE #38953 4326
  HURRICANE CREEK BLVD NASHVILLE TN KNOXVILLE INDUSTRIAL GROUP, LTD #5654 SUITE
  H&I 520 PIRKLE FERRY RD. SOUTHEAST REGION OFFICE GA BALDRIDGE #28834
  SUITE H&I SUITE D 520 PIRKLE FERRY RD. SOUTHEAST REGION OFFICE GA
  BALDRIDGE #28834 SUITE D 1111 SHALLOWFORD ROAD MARIETTA GA JAMES A. RAPTIS
  #5136 1460 CHASE STREET ATHENS GA BRUCE RICHBOURG #7268 2325 TUBMAN HOME ROAD
  AUGUSTA GA RASI, LLC #26470 5340 HAWKINSVILLE ROAD MACON GA BRUCE RICHBOURG
  #7268 1808 SANDERSON ROAD KNOXVILLE TN KNOXVILLE INDUSTRIAL GROUP, LTD #5654
  3000 A PINSON VALLEY PARKWAY BIRMINGHAM AL BAGGETT LEASING, INC. #36718 1
  PROSPERITY DRIVE SAVANNAH GA AMERICAN SHREDDING PROPERTIES, LLC #37911 2470
  I-65 SERVICE ROAD NORTH MOBILE AL MCALEER PROPERTIES, L.P. #39592 2951
  ROWLAND ROAD RALEIGH NC LETC, INC. #29538 7430 PEPPERMILL PARKWAY CHARLESTON
  SC RE/MAX PROFESSIONAL REALTY #4191 4501 EQUIPMENT DRIVE CHARLOTTE NC BGCS
  PROPERTY ASSOCIATES LLC #35007 1936 HIGHWAY 101 SOUTH GREER SC BRUCE
  RICHBOURG #7268 2039 WEST DEKALB STREET, UNIT D ATLANTIC REGION OFFICE SC
  LARRY DIBIASE #32646 3813 US HIGHWAY 421 NORTH WILMINGTON NC OLD NORTH STATE
  PROPERTIES, LLC #28081 confidential confidential 

  






 















	
  

  	
  14 #85938570v6
  Address City State Vendor/Landlord 3261 NEW BERN HIGHWAY JACKSONVILLE NC RWK
  LLC #34883 2323 SOUTH ALSTON AVENUE DURHAM NC BRUCE RICHBOURG #7268 2323
  SOUTH ALSTON AVENUE DURHAM#2 NC REAL ESTATE ASSOCIATES INC #10397 140 PEPSI
  LANE FAYETTEVILLE NC BRUCE RICHBOURG #7268 1716 E. PALMETTO STREET FLORENCE
  & ATLANTIC REGION SC ARTHUR J. & BARBARA M. DELLANO #24312 108 NORTH
  MONTAGUE DRIVE COLUMBIA SC BRUCE RICHBOURG #7268 5357 NC HWY 11 SOUTH
  GREENVILLE NC ARTHUR J. & BARBARA M. DELLANO #24312 925 PROFESSIONAL
  PLACE CHESAPEAKE VA JMP CHESAPEAKE #40458 600 INDUSTRIAL PARK DRIVE NEWPORT
  NEWS VA VENTURE INVESTMENTS LLC #30395 9030 BURGE AVENUE RICHMOND VA SPD
  ENTERPRISES LLC #34355 6382 BURNT POPLAR ROAD GREENSBORO NC EDWARD J. GREEN
  #18935 12101 TAC COURT MANASSASS VA MORAIS INVESTMENTS LLC 7601 JEFFERSON
  AVENUE WASHINGTON DC B & R PROPERTY MANAGEMENT, INC. #28792 101 NORTH
  LOOP WEST HOUSTON TX THE EISEMANN TRUST #28458 1248 E. INDUSTRIAL FT. WORTH
  TX ATOLL INVESTMENTS, LP #5815 1776 WOODSTEAD COURT, SUITE 228 THE WOODLANDS
  TX WOODMARK CAPITAL #40123 12949 RESEARCH BLVD. AUSTIN TX RCH COMPANY #6775
  1622 WEST 2ND STREET ODESSA TX E & N PROPERTIES LLC #38335 29740 SE LOOP
  410 SAN ANTONIO TX DENNIS R. OLOTEO JR. #38204 390 SOUTH VAN AVENUE HOUMA LA
  BRS LEASING & FINANCING, LLC #12775 1407 GENERAL MOUTON LAFAYETTE LA BRS
  LEASING & FINANCING, LLC #12775 3718 HIGHWAY 14 NEW IBERIA LA BRS LEASING
  & FINANCING, LLC #12775 10300 AIRLINE HIGHWAY ST. ROSE LA LATINO
  MUFFLERS, INC. #29831 3836 INDUSTRIAL CIRCLE BOSSIER CITY LA M & O
  INVESTMENTS, INC. #36648 37010 HIGHWAY 30 BATON ROUGE LA BAROGON PROPERTIES
  #13075 3718 HIGHWAY 14 MAJOR REPAIR (LOC @ NEW IBERIA) LA BRS LEASING &
  FINANCING, LLC #12775 390 SOUTH VAN AVENUE GULF REGION OFFICE LA BRS LEASING
  & FINANCING, LLC #12775 1835 S. BLACK CANYON HIGHWAY PHOENIX AZ MCP
  INVESTMENTS, LLC #1956 3682 SOUTH VALLEY VIEW BLVD LAS VEGAS NV GARY AND
  CAROL VOSBURG #35219 9700 ALTON WAY DENVER CO ALTON RENTALS, INC. #38356 2819
  W. RUTHRAUFF ROAD TUCSON AZ GEORGE H MUSEKAMP, III #6423 222 EAST VALLEY
  STREET SAN BERNARDINO CA HNK ASSOCIATES, LLC #25006 9580 WEST SAHARA AVENUE,
  #180E WESTERN REGION OFFICE NV THE PARK-215, LLC #34729 8401 EAST ILIFF
  AVENUE DENVER CENTRAL CO SCOTT & ELLEN HAMBURG #11717 1354 N. RED GUM AVENUE
  ANAHEIM CA ERDTSIECK FAMILY LIMITED PARTNERSHIP #5217 12410 MEAD WAY DENVER
  SOUTH CO SCOTT & ELLEN HAMBURG #11717 955 MISSION AVENUE ESCONDIDO CA
  DORIS LYMAN #6778 957 WEST MISSION AVENUE ESCONDIDO (#2) CA MARK D. KLAMMER
  #11074 621 L. STREET SAN DIEGO (CHULA VISTA) CA SANDRA BATES #16207 8700
  FRUITRIDGE ROAD SACRAMENTO CA GEORGE M. PHILPOTT, JR #8113 8455 SIERRA
  COLLEGE BLVD. ROSEVILLE CA McKINNEY & SONS #30853 confidential
  confidential 

  






 















	
  

  	
  15 #85938570v6
  Subleased Real Property (Neff Rental LLC as Sublessor) Address City State
  Sublessee 12949 RESEARCH BLVD. AUSTIN TX RIVER CITY MANUFACTURING COMPANY
  12949 RESEARCH BLVD. AUSTIN TX RIVER CITY HOSE & SUPPLY INC. 1925 NW 18TH
  STREET POMPANO SUB- LEASE FL DUBLIN HOLDINGS, LLC #30639 – LESSOR ON “PRIME LEASE”
  confidential confidential 

  






 















	
  

  	
  16 #85938570v6
  Schedule 3.25 INTELLECTUAL PROPERTY Patents None. Trademarks United States
  Federal Trademark Registrations: Mark Registration Number NEFF RENTAL &
  Circular Design 3,200,927 NEFF RENTAL & Lines Design 3,200,938 NEFF
  RENTAL 3,205,229 WE CARE MORE 3,467,842 WE HAVE IT . . . 4,537,563 Copyrights
  None. confidential confidential 

  






 















	
  

  	
  17 #85938570v6
  Schedule 5.12 POST-CLOSING COLLATERAL MATTERS 1. Use commercially reasonable
  efforts to obtain within 60 days of the Closing Date the executed Control
  Agreement(s) required by Section 6(a)(iii) of the Guarantee and Collateral
  Agreement (which, for avoidance of doubt, may take the form of amendments and
  restatements of Control Agreement(s) existing prior to the Closing Date).
  confidential confidential 

  






 















	
  

  	
  18 #85938570v6
  Schedule 6.01(d) EXISTING INDEBTEDNESS 1. Indebtedness pursuant to the
  Indenture, dated as of May 13, 2011, between Neff Rental LLC, Neff Rental
  Finance Corp., the guarantors party thereto from time to time, and Wilmington
  Trust FSB, as trustee.2 2 This Indebtedness will be repaid on the Closing
  Date. confidential confidential 

  






 















	
  

  	
  19 #85938570v6
  Schedule 6.02 EXISTING LIENS3 Name of Entity Type of Filing Filing Office
  Filing Number/Reel/Frame Assets subject to filing Neff LLC UCC-1 Delaware SOS
  2011 1827941 All assets Neff Holdings LLC UCC-1 Delaware SOS 2011 1827826 All
  assets Neff Rental LLC UCC-1 Delaware SOS 2011 1828014 All assets Neff Rental
  LLC IP Security Agreement USPTO Reel 3902 Frame 0261 Neff Rental and Circular
  Design, Reg. No. 3,200,927 Neff Rental and Lines Design, Reg. No. 3,200,938
  Neff Rental, Reg. No. 3,205,229 We Care More, Reg. No. 3,467,842 3 Existing
  Liens to be terminated substantially concurrently with the closing of the
  Transactions. confidential confidential 

  






 















	
  

  	
  20 #85938570v6
  Schedule 6.05 EXISTING INVESTMENTS None. confidential confidential 

  






 















	
  

  	
  21 #85938570v6
  Schedule 6.16 AFFILIATE TRANSACTIONS The transactions and arrangements
  disclosed on Schedule 3.08. confidential confidential 

  






 















	
  

  	
  EXHIBIT A A-1
  #85941052v7 EXHIBIT A FORM OF ADMINISTRATIVE QUESTIONNAIRE Agent Information
  Agent Closing Contact Credit Suisse AG Shawan Fox Eleven Madison Avenue Tel:
  (212) 538-8608 New York, NY 10010 Fax: (212) 325 8315 E-Mail: shawan.fox@credit-suisse.com
  Agent Wire Instructions The Bank of New York Mellon ABA 021000018 Account
  Name: CS Agency Cayman Account Account Number: 8900492627 A. ENTER BORROWER
  NAME HERE It is very important that all of the requested information be
  completed accurately and that this questionnaire be returned promptly. If
  your institution is sub-allocating its allocation, please fill out an
  administrative questionnaire for each legal entity. Legal Name of Lender to
  appear in Documentation: Signature Block Information: • Signing Credit
  Agreement Yes No • Coming in via Assignment Yes No Type of Lender: (Bank,
  Asset Manager, Broker/Dealer, CLO/CDO; Finance Company, Hedge Fund,
  Insurance, Mutual Fund, Pension Fund, Other Regulated Investment Fund,
  Special Purpose Vehicle, Other-please Lender Parent: Lender Domestic Address
  Lender Eurodollar Address confidential confidential 

  






 















	
  

  	
  A-2 #85941052v7
  Primary Credit Contact Secondary Credit Contact Name: Company: Title:
  Address: Telephone: Facsimile: E-Mail Address: Primary Operations Contact
  Secondary Operations Contact Name: Company: Title: Address: Telephone:
  Facsimile: E-Mail Address: Contacts/Notification Methods: Borrowings,
  Paydowns, Interest, Fees, etc. Lender’s Domestic Wire Instructions Bank Name:
  ABA/Routing No.: Account Name: Account No.: FFC Account Name: FFC Account
  No.: Attention: Reference: confidential confidential 

  






 















	
  

  	
  A-3 #85941052v7
  NON-U.S. LENDER INSTITUTIONS: I. Corporations: If your institution is
  incorporated outside of the United States for U.S. federal income tax
  purposes, and is the beneficial owner of the interest and other income it
  receives, you must complete one of the following three tax forms, as
  applicable to your institution: a.) Form W-8BEN-E (Certificate of Foreign
  Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected to
  a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign
  Government or Governmental Agency). A U.S. taxpayer identification number is
  required for any institution submitting Form W-8ECI. It is also required on
  Form W-8BEN-E for certain institutions claiming the benefits of a tax treaty
  with the U.S. Please refer to the instructions when completing the form
  applicable to your institution. In addition, please be advised that U.S. tax
  regulations do not permit the acceptance of faxed forms. An original tax form
  must be submitted. II. Flow-Through Entities: If your institution is
  organized outside the U.S., and is classified for U.S. federal income tax
  purposes as either a Partnership, Trust, Qualified or Non-Qualified
  Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY
  (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain
  U.S. Branches for United States Tax Withholding) must be completed by the
  intermediary together with a withholding statement. Flow-through entities
  other than Qualified Intermediaries are required to include tax forms for
  each of the underlying beneficial owners. Please refer to the instructions
  when completing this form. In addition, please be advised that U.S. tax
  regulations do not permit the acceptance of faxed forms. Original tax form(s)
  must be submitted. U.S. LENDER INSTITUTIONS: If your institution is
  incorporated or organized within the United States, you must complete and
  return Form W-9 (Request for Taxpayer Identification Number and
  Certification). Original tax form(s) must be submitted. Pursuant to the
  language contained in the tax section of the Credit Agreement, the applicable
  tax form for your institution must be completed and returned on or prior to
  the date on which the institution becomes a Lender under the Credit
  Agreement. Failure to provide the proper tax form when requested may subject
  your institution to U.S. tax withholding. Tax Documents confidential
  confidential 

  






 















	
  

  	
  EXHIBIT B B-1-1
  #85941052v7 EXHIBIT B FORM OF ASSIGNMENT AND ACCEPTANCE This Assignment and
  Assumption (this “Assignment and Assumption”) is dated as of the Effective
  Date set forth below and is entered into by and between [the][each]1 Assignor
  identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2
  Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is
  understood and agreed that the rights and obligations of [the Assignors][the
  Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but
  not defined herein shall have the meanings given to them in the Credit
  Agreement identified below (as amended, the “Credit Agreement”), receipt of a
  copy of which is hereby acknowledged by [the][each] Assignee. The Standard
  Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
  to and incorporated herein by reference and made a part of this Assignment
  and Assumption as if set forth herein in full. For an agreed consideration,
  [the][each] Assignor hereby irrevocably sells and assigns to [the
  Assignee][the respective Assignees], and [the][each] Assignee hereby
  irrevocably purchases and assumes from [the Assignor][the respective
  Assignors], subject to and in accordance with the Standard Terms and Conditions
  and the Credit Agreement, as of the Effective Date inserted by the
  Administrative Agent as contemplated below (i) all of [the Assignor’s][the
  respective Assignors’] rights and obligations in [its capacity as a
  Lender][their respective capacities as Lenders] under the Credit Agreement
  and any other documents or instruments delivered pursuant thereto to the
  extent related to the amount and percentage interest identified below of all
  of such outstanding rights and obligations of [the Assignor][the respective
  Assignors] under the respective facilities identified below (including
  without limitation any letters of credit, guarantees, and swingline loans
  included in such facilities), and (ii) to the extent permitted to be assigned
  under applicable law, all claims, suits, causes of action and any other right
  of [the Assignor (in its capacity as a Lender)][the respective Assignors (in
  their respective capacities as Lenders)] against any Person, whether known or
  unknown, arising under or in connection with the Credit Agreement, any other
  documents or instruments delivered pursuant thereto or the loan transactions
  governed thereby or in any way based on or related to any of the foregoing,
  including, but not limited to, contract claims, tort claims, malpractice claims,
  statutory claims and all other claims at law or in equity related to the
  rights and obligations sold and assigned 1 For bracketed language here and
  elsewhere in this form relating to the Assignor(s), if the assignment is from
  a single Assignor, choose the first bracketed language. If the assignment is
  from multiple Assignors, choose the second bracketed language. 2 For
  bracketed language here and elsewhere in this form relating to the
  Assignee(s), if the assignment is to a single Assignee, choose the first
  bracketed language. If the assignment is to multiple Assignees, choose the
  second bracketed language. 3 Select as appropriate. 4 Include bracketed
  language if there are either multiple Assignors or multiple Assignees.
  confidential confidential 

  






 















	
  

  	
  EXHIBIT B B-1-2
  #85941052v7 pursuant to clause (i) above (the rights and obligations sold and
  assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses
  (i) and (ii) above being referred to herein collectively as [the][an]
  “Assigned Interest”). Each such sale and assignment is without recourse to
  [the][any] Assignor and, except as expressly provided in this Assignment and
  Assumption, without representation or warranty by [the][any] Assignor. 1.
  Assignor[s]: 2. Assignee[s]: [for each Assignee, indicate if [Affiliated
  Lender][Purchasing Borrower Party][Affiliate of [identify Lender]]] 3.
  Affiliate Status: 4. Borrower: Neff Rental LLC 5. Administrative Agent:
  Credit Suisse AG, including any successor thereto, as the administrative
  agent under the Credit Agreement. 6. Credit Agreement: Second Lien Credit
  Agreement, dated as of June 9, 2014 (as amended, restated, extended,
  supplemented or otherwise modified in writing from time to time, the “Credit
  Agreement”), among Neff Rental LLC, Neff LLC, Neff Holdings LLC, the other
  guarantors party thereto from time to time, Credit Suisse AG, as
  Administrative Agent, each lender from time to time party thereto
  (collectively, the “Lenders” and, individually, a “Lender”) and Jefferies
  Finance LLC as Syndication Agent. 7. Assigned Interest: confidential
  confidential 

  






 















	
  

  	
  EXHIBIT B B-1-3
  #85941052v7 Assignor[s]5 Assignee[s]6 Facility Assigned7 Aggregate Amount of
  Commitment / Loans for all Lenders8 Amount of Commitment / Loans Assigned
  Percentage Assigned of Commitment /Loans9 CUSIP Number $ $ % $ $ % $ $ % [8.
  Trade Date: ]10 Effective Date: _________________,20__ [TO BE INSERTED BY THE
  ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
  TRANSFER IN THE REGISTER THEREFOR.] 5 List each Assignor, as appropriate. 6
  List each Assignee, as appropriate. 7 Fill in the appropriate terminology for
  the types of facilities under the Credit Agreement that are being assigned
  under this Assignment and Assumption (“Closing Date Loan”, “Incremental
  Loans”, or “Extended Loans”). 8 Amounts in this column and in the column
  immediately to the right to be adjusted by the counterparties to take into
  account any payments or prepayments made between the Trade Date and the
  Effective Date. 9 Set forth, to at least 9 decimals, as a percentage of the
  Commitment/Loans of all Lenders thereunder. 10 To be completed if the
  Assignor and the Assignee intend that the minimum assignment amount is to be
  determined as of the Trade Date. confidential confidential 

  






 















	
  

  	
  EXHIBIT B B-1-4
  #85941052v7 The terms set forth in this Assignment and Assumption are hereby
  agreed to: ASSIGNOR [NAME OF ASSIGNOR] By: Name: Title: ASSIGNEE [NAME OF
  ASSIGNEE] By: Name: Title: [Consented to and]11 Accepted: CREDIT SUISSE AG,
  CAYMAN ISLANDS BRANCH, as Administrative Agent By: Name: Title: By: Name:
  Title: 11 To be added only if the consent of the Administrative Agent is
  required by the terms of the Credit Agreement. confidential confidential 

  






 















	
  

  	
  EXHIBIT B B-1-5
  #85941052v7 [Consented to]:12 NEFF RENTAL LLC By: Name: Title: 12 To be added
  only if the consent of the Borrower is required by the terms of the Credit
  Agreement. confidential confidential 

  






 















	
  

  	
  EXHIBIT C
  #85941052v7 ANNEX 1 TO ASSIGNMENT AND ASSUMPTION STANDARD TERMS AND
  CONDITIONS FOR ASSIGNMENT AND ASSUMPTION 1. Representations and Warranties.
  1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it
  is the legal and beneficial owner of [the][the relevant] Assigned Interest
  and the outstanding balances of its Loans are set forth herein, (ii)
  [the][such] Assigned Interest is free and clear of any lien, encumbrance or
  other adverse claim, (iii) it has full power and authority, and has taken all
  action necessary, to execute and deliver this Assignment and Assumption and
  to consummate the transactions contemplated hereby and (iv) it is [not] a
  Defaulting Lender; and (b) other than as set forth in clause (i) assumes no
  responsibility with respect to (i) any statements, warranties or
  representations made in or in connection with the Credit Agreement or any
  other Loan Document, (ii) the execution, legality, validity, enforceability,
  genuineness, sufficiency or value of the Loan Documents or any collateral
  thereunder, (iii) the financial condition of Holdings, any of its
  subsidiaries or Affiliates or any other Person obligated in respect of any
  Loan Document or (iv) the performance or observance by Holdings, any of its
  subsidiaries or Affiliates or any other Person of any of their respective
  obligations under any Loan Document. 1.2. Assignee. [The][Each] Assignee (a)
  represents and warrants that (i) it has full power and authority, and has
  taken all action necessary, to execute and deliver this Assignment and
  Assumption and to consummate the transactions contemplated hereby and to become
  a Lender under the Credit Agreement, (ii) it is an Eligible Assignee and
  meets all the requirements to be an assignee under Section 9.04(b), (c)[,
  (k)][, (m)] of the Credit Agreement (subject to such consents, if any, as may
  be required under Section 9.04(b) of the Credit Agreement), (iii) from and
  after the Effective Date referred to in this Assignment and Assumption, it
  shall be bound by the provisions of the Credit Agreement as a Lender
  thereunder and, to the extent of [the][the relevant] Assigned Interest, shall
  have the obligations of a Lender thereunder, (iv) it is sophisticated with
  respect to decisions to acquire assets of the type represented by [the][such]
  Assigned Interest and either it, or the Person exercising discretion in
  making its decision to acquire [the][such] Assigned Interest, is experienced
  in acquiring assets of such type, (v) it has received a copy of the Credit
  Agreement, and has received or has been accorded the opportunity to receive
  copies of the most recent financial statements delivered pursuant to Section
  5.04(a) and (b) thereof, as applicable, and such other documents and
  information as it deems appropriate to make its own credit analysis and
  decision to enter into this Assignment and Assumption and to purchase
  [the][such] Assigned Interest, (vi) it has, independently and without
  reliance upon the Administrative Agent or any other Lender and based on such
  documents and information as it has deemed appropriate, made its own credit
  analysis and decision to enter into this Assignment and Assumption and to
  purchase [the][such] Assigned Interest, (vii) attached hereto is any
  documentation required to be delivered by it pursuant to the terms of the
  Credit Agreement, including but not limited to any documentation required
  pursuant to Section 2.20 of the Credit Agreement, duly completed and executed
  by [the][such] Assignee and (viii) it is not a Disqualified Institution; (b)
  agrees that (i) it will, independently and without reliance upon the
  Administrative Agent, [the][any] Assignor or any other Lender, and based on
  such documents confidential confidential 

  






 















	
  

  	
  EXHIBIT C
  #85941052v7 and information as it shall deem appropriate at the time,
  continue to make its own credit decisions in taking or not taking action
  under the Loan Documents, and (ii) it will perform in accordance with their
  terms all of the obligations which by the terms of the Loan Documents are
  required to be performed by it as a Lender; and (c) appoints and authorizes
  the Administrative Agent and the Collateral Agent to take such action as
  agent on its behalf and to exercise such powers under the Credit Agreement
  and the other Loan Documents (including each Intercreditor Agreement) as are
  delegated to or otherwise conferred upon the Administrative Agent, by the
  terms thereof, together with such powers as are reasonably incidental
  thereto. 2. Payments. From and after the Effective Date, the Administrative
  Agent shall make all payments in respect of [the][each] Assigned Interest
  (including payments of principal, interest, fees and other amounts) to
  [the][the relevant] Assignor for amounts which have accrued to but excluding
  the Effective Date and to [the][the relevant] Assignee for amounts which have
  accrued from and after the Effective Date. 3. General Provisions. This Assignment
  and Assumption shall be binding upon, and inure to the benefit of, the
  parties hereto and their respective successors and assigns. This Assignment
  and Assumption may be executed in any number of counterparts (and by
  different parties hereto in different counterparts), each of which shall
  constitute an original, but all of which together shall constitute one
  instrument. Delivery of an executed counterpart of a signature page of this
  Assignment and Assumption by telecopy or other electronic imaging means shall
  be effective as delivery of a manually executed counterpart of this
  Assignment and Assumption. This Assignment and Assumption shall be governed
  by, and construed in accordance with, the law of the State of New York. [Each
  Lender participating in any assignment to Affiliated Lenders acknowledges and
  agrees that in connection with such assignment, (1) the Affiliated Lenders
  then may have, and later may come into possession of Excluded Information (as
  defined below), (2) such Lender has independently and, without reliance on
  the Affiliated Lenders or any of their Subsidiaries, Holdings, Parent, the
  Borrower or any of their Subsidiaries, the Administrative Agent, its
  respective affiliates, officers, directors, employees, partners, agents,
  advisors and other representatives, has made its own analysis and
  determination to participate in such assignment notwithstanding such Lender’s
  lack of knowledge of the Excluded Information, (3) none of the Affiliated
  Lenders or any of their Subsidiaries, Holdings, Parent, the Borrower or any
  of their Subsidiaries shall be required to make any representation that it is
  not in possession of Excluded Information, (4) none of the Affiliated Lenders
  or any of their Subsidiaries, Holdings, Parent, the Borrower or their
  respective Subsidiaries, the Administrative Agent, its respective affiliates,
  officers, directors, employees, partners, agents, advisors and other
  representatives, shall have any liability to such Lender, and such Lender
  hereby waives and releases, to the extent permitted by law, any claims such
  Lender may have against the Affiliated Lenders and any of their Subsidiaries,
  Holdings, Parent, the Borrower and their respective Subsidiaries, the
  Administrative Agent, its respective affiliates, officers, directors, employees,
  partners, agents, advisors and other representatives, under applicable laws
  or otherwise, with respect to the nondisclosure of the Excluded Information
  and (5) that the Excluded Information may not be available to the
  Administrative Agent or the other Lenders.] confidential confidential 

  






 















	
  

  	
  EXHIBIT C
  #85941052v7 As used herein, “Excluded Information” means information
  regarding Holdings, the Borrower, the Sponsor and their respective affiliates
  not known to such Lender and that may be material to a decision by such
  Lender to participate in such assignment (including material nonpublic
  information).]1 1 To be included in an assignment pursuant to Section 9.04(k)
  or 9.04(m) of the Credit Agreement. confidential confidential 

  






 















	
  

  	
  EXHIBIT C
  #85941052v7 EXHIBIT C FORM OF BORROWING REQUEST Date: __________, _____ To:
  Credit Suisse AG, as Administrative Agent Eleven Madison Avenue New York, New
  York 10010 Ladies and Gentlemen: Reference is made to the Second Lien Credit
  Agreement, dated as of June 9, 2014 (as amended, restated, extended,
  supplemented or otherwise modified in writing from time to time, the “Credit
  Agreement”), among Neff Rental LLC, Neff LLC, Neff Holdings LLC, Credit
  Suisse AG, as Administrative Agent, and each lender from time to time party thereto
  (collectively, the “Lenders” and, individually, a “Lender”). Capitalized
  terms used herein and not otherwise defined herein shall have the meanings
  assigned to such terms in the Credit Agreement. The Borrower hereby requests
  (select one): A Borrowing of new Loans A conversion of Loans made on OR A
  continuation of Eurocurrency Rate Loans made on to be made on the terms set
  forth below: (A) Class of Borrowing2 (B) Date of Borrowing, conversion or
  continuation (which is a Business Day) (C) Principal amount3 (D) Type of
  Loan4 2 Closing Date Loans, Incremental Loans or Extended Loans. 3
  Conversions or continuations to be in a minimum principal amount of
  $1,000,000 and in whole multiples of $500,000 in excess thereof (if less than
  all outstanding principal amount of any Borrowing is being continued or
  converted). Extended Loans shall be in a minimum principal amount of
  $100,000,000 and in whole multiples of $25,000,000 in excess thereof.
  Incremental Loans shall be in a minimum principal amount of $25,000,000 and
  in whole multiples of $1,000,000 in excess thereof. confidential confidential
  

  






 















	
  

  	
  EXHIBIT C
  #85941052v7 (E) Interest Period and the last day thereof5 (F) Wire
  instructions for Borrower account Bank: ABA Routing Transit Number: Account
  Number: Account Name: FFC: Reference: [Except in respect of any conversion or
  continuation of a Borrowing, the undersigned hereby represents and warrants
  to the Administrative Agent and the Lenders that the conditions specified in
  Section 4.02(b) of the Credit Agreement will be satisfied as of the date of
  the Borrowing set forth above.]6 [The remainder of this page is intentionally
  left blank.] (continued.) 4 Specify Eurodollar or ABR. 5 Applicable for
  Eurodollar Borrowings only; specify 1, 2, 3 or 6 months. 6 Applies only to
  Borrowings after the Closing Date. confidential confidential 

  






 















	
  

  	
  EXHIBIT C
  #85941052v7 NEFF RENTAL LLC By: Name: Title: confidential confidential 

  






 















	
  

  	
  EXHIBIT D-1
  #85941052v7 EXHIBIT D-1 FORM OF GUARANTEE AND COLLATERAL AGREEMENT [See
  attached] confidential confidential 

  






 















	
  

  	
  EXECUTION
  VERSION #85923267v18 GUARANTEE AND COLLATERAL AGREEMENT GUARANTEE AND
  COLLATERAL AGREEMENT, dated as of June 9, 2014 (as the same may be amended,
  supplemented, restated or otherwise modified from time to time, this “Agreement”),
  among NEFF RENTAL LLC, a Delaware limited liability company (the “Borrower”),
  NEFF HOLDINGS LLC, a Delaware limited liability company (“Holdings”), NEFF
  LLC, a Delaware limited liability company (the “Parent”), and each other
  Person which becomes party hereto as Grantor pursuant to Section 23 of this
  Agreement (such Persons, together with the Borrower, Holdings and Parent,
  collectively, the “Grantors” and each, a “Grantor”), and CREDIT SUISSE AG, in
  its capacities as administrative agent and collateral agent for the Secured
  Parties (defined below) (in such capacities, together with its successors and
  assigns in such capacities, if any, the “Agent”). W I T N E S S E T H:
  WHEREAS, pursuant to the terms, conditions and provisions of the Second Lien
  Credit Agreement dated as of the date hereof (as amended, amended and
  restated, supplemented or otherwise modified from time to time, the “Credit
  Agreement”), among the Borrower, the Parent, Holdings, the Agent, and the
  Lenders party thereto from time to time, (the “Lenders”) the Lenders are
  extending credit to the Borrower in the form of second lien term loans (the
  “Loans”) in aggregate principal amount of $575,000,000; WHEREAS, the Borrower
  and certain of the other Grantors may, from time to time, enter into
  Additional Secured Documents (as defined below) and incur Additional
  Obligations (as defined below); WHEREAS, each Grantor and each Guarantor is
  executing and delivering this Agreement, pursuant to the terms of the Credit
  Agreement, to induce the Lenders to make the Loans, and it is a condition
  precedent to the making of the Loans to the Borrower that each Grantor and
  each Guarantor shall have executed and delivered to the Agent for the benefit
  of the Secured Parties this Agreement; WHEREAS, each Grantor and each
  Guarantor will derive substantial benefits from the borrowing of Loans by the
  Borrower under the Credit Agreement and, accordingly, desires to execute this
  Agreement in order to satisfy the condition described in the preceding
  recital; NOW, THEREFORE, in consideration of the premises and mutual
  covenants herein contained and for other good and valuable consideration, the
  receipt and sufficiency of which are hereby acknowledged, the parties hereto
  agree as follows: 1. Defined Terms. (a) All capitalized terms used but not
  otherwise defined herein and defined in the Credit Agreement have the
  meanings given to them in the Credit Agreement. confidential confidential 

  






 















	
  

  	
  -2-
  #85923267v18 (b) The following terms shall have the meanings assigned thereto
  in the Uniform Commercial Code as in effect from time to time in the State of
  New York (the “Code”): “Commercial Tort Claim”, “Commodities Intermediary”,
  “Deposit Account”, “Documents”, “Electronic Chattel Paper”, “Entitlement
  Holder”, “Entitlement Order”, “Financial Asset”, “Goods”, “Letter-of-Credit
  Rights”, “Payment Intangibles”, “Proceeds”, “Securities Intermediary”,
  “Software”, “Supporting Obligation” and “Uncertificated Securities”. (c) As
  used herein, the following terms shall have the meaning set forth below, such
  meaning to be applicable equally to both the singular and plural forms of
  such terms: “Accounts” means all “accounts,” as such term is defined in the
  Code, now owned or hereafter acquired by any Grantor, such term to include
  (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 Grantor’s rights in, to and
  under all purchase orders or receipts for goods or services, (c) all of each
  Grantor’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 Grantor 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, arising out of
  the use of a credit card or charge card, or for services rendered or to be
  rendered by such Grantor or in connection with any other transaction (whether
  or not yet earned by performance on the part of such Grantor) and (e) 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. “Account
  Debtor” means any Person who may become obligated to any Grantor under, with
  respect to, or on account of, an Account, Chattel Paper or General
  Intangibles (including a Payment Intangible). “Act of Required Secured
  Parties” means, a direction in writing delivered to the Agent by or with the
  written consent of the holders of at least 50.1% of the aggregate outstanding
  principal amount of Secured Obligations (including outstanding letters of
  credit whether or not then drawn). “Additional Secured Document” means any
  document designated as such in any Joinder and Supplement to Guarantee and
  Collateral Agreement in accordance with Section 22 hereto. “Additional
  Secured Obligations” means any obligations of any Grantor designated as such
  in a Joinder and Supplement to Guarantee and Collateral Agreement in
  accordance with Section 22 hereof. confidential confidential 

  






 















	
  

  	
  -3-
  #85923267v18 “Additional Secured Party” means each holder of Additional
  Secured Obligations, and any agent or trustee therefor, so designated in a Joinder
  and Supplement to Guarantee and Collateral Agreement in accordance with
  Section 22 hereof, and “Additional Secured Parties” shall mean, collectively,
  each such Additional Secured Party. “Agent” has the meaning provided in the
  preamble hereto. “Blocked Account” means each Deposit Account that is subject
  to a Control Agreement. “Blocked Account Bank” means each depositary bank
  that is party to a Control Agreement. “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 Grantor, wherever located.
  “Collateral” has the meaning specified in Section 3(a). “Commodity Exchange
  Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from
  time to time, and any successor statute. “Contractual Obligations” means, as
  applied to any Person, any credit agreement, 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. “Control Agreements” means: (a) in the case
  of any bank account, a deposit account control agreement by and among the
  applicable Grantor, the Agent and the depository, pursuant to which such
  depository acknowledges the security interest of the Agent in the deposit
  account, agrees (subject to the terms of the Intercreditor Agreement) to
  comply with instructions originated by Agent directing disposition of the
  funds in the bank account without further consent from such Grantor or
  Subsidiary, and agrees to subordinate and limit any security interest the
  bank may have in such bank account on terms reasonably satisfactory to Agent;
  (b) in the case of any securities account, a securities account control
  agreement by and among the applicable Grantor, Agent and the securities
  intermediary, pursuant to which such securities intermediary acknowledges the
  security interest of Agent in the securities account, agrees (subject to the
  terms of the Intercreditor Agreement) to comply with Entitlement Orders
  originated by Agent with respect to the securities account without further
  consent from such Grantor or Subsidiary, and agrees to subordinate and limit
  any security interest the securities intermediary may have in such securities
  account on terms reasonably satisfactory to Agent; and confidential
  confidential 

  






 















	
  

  	
  -4-
  #85923267v18 (c) in the case of any commodities account, a commodities
  account control agreement by and among the applicable Grantor, Agent and the
  commodities intermediary, pursuant to which such commodities intermediary
  acknowledges the security interest of Agent in the commodities account,
  agrees (subject to the terms of the Intercreditor Agreement) to comply with
  instructions originated by Agent directing application of any value
  distributed on account of any commodity contract in the commodities account
  without further consent from such Grantor, and agrees to subordinate and
  limit any security interest the commodities intermediary may have in such
  commodities account on terms reasonably satisfactory to Agent. “Control
  Collateral” means Collateral consisting of any Titled Collateral,
  Certificated Security, Instrument, Investment Property, and any other
  Collateral, as to which a first priority Lien shall be perfected through
  possession or control by the secured party or any agent therefor. “Copyright
  License” means any and all rights now owned or hereafter acquired by any
  Grantor under any written agreement granting any right to use any Copyright
  or Copyright registration. “Copyrights” means all of the following now owned
  or hereafter adopted or acquired by any Grantor: (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. “Credit Agreement” has the meaning provided in the preamble hereto.
  “Discharge of First Lien Obligations” has the meaning given to such term in
  the Intercreditor Agreement. “Discharge of Secured Obligations” means (i)
  payment in full in cash of the principal of and interest (including interest
  accruing on or after the commencement of any Insolvency or Liquidation
  Proceeding, whether or not a claim for such interest is, or would be, allowed
  in such Insolvency or Liquidation Proceeding) and premium, if any, on all
  Indebtedness outstanding under the Secured Documents and (ii) payment in full
  in cash of all other Secured Obligations that are outstanding and unpaid at
  the time such principal and interest are paid in full (including interest
  accruing on or after the commencement of any Insolvency or Liquidation
  Proceeding, whether or not a claim for such interest is, or would be, allowed
  in such Insolvency or Liquidation Proceeding and other than any obligations
  for taxes, costs, indemnifications, reimbursements, damages and other
  liabilities in respect of which no claim or demand for payment has been
  made). confidential confidential 

  






 


 












	
  

  	
  -5-
  #85923267v18 “Equipment” means all “equipment,” as such term is defined in
  the Code, now owned or hereafter acquired by any Grantor, wherever located
  and, in any event, including all such Grantor’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. “Excluded Equity” means any Voting Stock in excess of
  65% of the total outstanding Voting Stock of any direct Subsidiary of any
  Grantor that is a Non-U.S. Person; provided that Excluded Equity shall not
  include any equity interests that secure the Revolving Credit Facility. For
  the purposes of this definition, “Voting Stock” means, as to any Borrower,
  the issued and outstanding shares of each class of stock of such Borrower
  entitled to vote (within the meaning of Treasury Regulations §
  1.956-2(c)(2)). “Excluded Property” means, collectively, (i) Excluded Equity,
  (ii) any permit, lease, license, contract, Instrument or other agreement held
  by any Grantor that prohibits or requires the consent of any Person other
  than Holdings, Parent or their respective Affiliates as a condition to the
  creation by such Grantor of a Lien thereon, or any permit, lease, license,
  contract or other agreement held by any Grantor to the extent that any laws
  applicable thereto prohibit the creation of a Lien thereon, but only, in each
  case, to the extent, and for so long as, such prohibition is not terminated
  or rendered unenforceable or otherwise deemed ineffective by the Code
  (including, without limitation, pursuant to Sections 9-406, 9-407, 9-408 and
  9-409 of the Code) or any other laws (including, without limitation, the
  Bankruptcy Code), (iii) any property owned by a Grantor that is subject to a
  purchase money Lien or a capital or synthetic lease if the contract or other
  agreement in which such Lien is granted (or in the documentation providing
  for such purchase money Lien or capital or synthetic lease) prohibits or
  requires the consent of any Person other than the Grantor as a condition to
  the creation of any other Lien on such property, (iv) assets disposed of to a
  Person that is not a Grantor in compliance with the Secured Documents, (v)
  any letter of credit to the extent any Grantor is required by applicable law
  to apply the Proceeds of a drawing of such letter of credit for a specified
  purpose, (vi) any “intent-to-use” applications for trademark or service mark
  registrations filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. §
  1051, unless and until an Amendment to Allege Use or a Statement of Use under
  Sections 1(c) and 1(d) of said Act has been filed, to the extent that any
  assignment of an “intent-to-use” application prior to such filing would
  violate the Lanham Act and (vii) all Rolling Stock unless such Rolling Stock
  secures the obligations under the Revolving Credit Facility; provided,
  however, “Excluded Property” shall not include (x) any Proceeds,
  substitutions or replacements of any of the assets deconfidential
  confidential 

  






 















	
  

  	
  -6-
  #85923267v18 scribed in clauses (i) through (vii) of this definition (unless
  such Proceeds, substitutions or replacements would constitute Excluded
  Property) and (y) any assets that secure the Revolving Credit Facility.
  “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap
  Obligation if, and to the extent that, all or a portion of the Guarantee
  under Section 2 hereto of such Guarantor of, or the grant by such Guarantor
  of a security interest to secure, such Swap Obligation (or any Guarantee
  thereof) is or becomes illegal under the Commodity Exchange Act or any rule,
  regulation or order of the Commodity Futures Trading Commission (or the
  application or official interpretation of any thereof) by virtue of such
  Guarantor’s failure for any reason to constitute an “eligible contract
  participant” as defined in the Commodity Exchange Act and the regulations
  thereunder at the time the Guarantee of such Guarantor or the grant of such
  security interest becomes effective with respect to such Swap Obligation. If
  a Swap Obligation arises under a master agreement governing more than one
  swap, such exclusion shall apply only to the portion of such Swap Obligation
  that is attributable to swaps for which such Guarantee or security interest
  is or becomes illegal. “Event of Default” shall mean an “Event of Default”
  under the Credit Agreement and any Secured Document. “Fixtures” means all
  “fixtures” as such term is defined in the Code, now owned or hereafter
  acquired by any Grantor. “General Intangibles” means “general intangibles,”
  as such term is defined in the Code, now owned or hereafter acquired by any
  Grantor, including all right, title and interest that such Grantor 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, 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, choses 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
  Grantor or any computer bureau or service company from time to time acting
  for such Grantor. confidential confidential 

  






 















	
  

  	
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  #85923267v18 “Grantors” has the meaning provided in the preamble hereto.
  “Guarantors” means, collectively, each Grantor other than the Borrower.
  “Instruments” means all “instruments,” as such term is defined in the Code,
  now owned or hereafter acquired by any Grantor, 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. “Intellectual Property Security Agreement” means the
  Intellectual Property Security Agreement made in favor of Agent, on behalf of
  itself and the Secured Parties, by each applicable Grantor, substantially in
  the form of Exhibit C hereto. “Intercompany Note” means any promissory note
  evidencing loans made by any Grantor to Parent or any of its subsidiaries. “Investment
  Property” means all “investment property,” as such term is defined in the
  Code, now owned or hereafter acquired by any Grantor, 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 Grantor, including the rights
  of such Grantor 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 Grantor; (d) all commodity
  contracts of any Grantor; and (e) all commodity accounts held by any Grantor.
  “Joinder and Supplement to Guarantee and Collateral Agreement” means a
  supplement substantially in the form of Exhibit D hereto. “Non-U.S. Person”
  means any Person that is not a U.S. Person. “Patent License” means rights
  under any written agreement now owned or hereafter acquired by any Grantor
  granting any right with respect to any invention on which a Patent is in
  existence. “Patents” means all of the following in which any Grantor 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
  Unitconfidential confidential 

  






 















	
  

  	
  -8-
  #85923267v18 ed States, any State or any other country, and (b) all reissues,
  continuations, continuations- in-part or extensions thereof. “Perfection
  Agent” means (a) prior to the Discharge of First Lien Obligations, the
  Control Agent (as defined in the Intercreditor Agreement), its successors and
  assigns and (b) after the Discharge of First Lien Obligations, the Agent.
  “Perfection Certificate” means the Perfection Certificate dated as of June 9,
  2014 executed by the Grantors. “Pledged Note” means with respect to any
  Grantor, all promissory notes listed on Schedule IV, all Intercompany Notes
  at any time issued to any Grantor and all other promissory notes issued to or
  held by any Grantor in excess of $1,000,000 individually (other than
  promissory notes issued in connection with extensions of trade credit by any
  Grantor in the ordinary course of business). “Pledged Stock” means the shares
  of Capital Stock listed on Schedule IV, together with any other shares, stock
  certificates, options, interests or rights of any nature whatsoever in
  respect of the Capital Stock of any Grantor or Subsidiary that may be issued or
  granted to, or held by, any Grantor while this Agreement is in effect;
  provided that Pledged Stock shall not include (a) Excluded Equity and (b) to
  the extent applicable law requires that a Subsidiary of such Grantor issue
  directors’ qualifying shares, such shares or nominee or other similar shares.
  “Rental Payments” means rental payments due to any Grantor from the rental of
  Rental Fleet and Equipment owned by such Person. “Rolling Stock” means all
  transportation equipment used to transport Rental Fleet and Equipment
  including all trucks, trailers, tractors, service vehicles, vans, pickup
  trucks, forklifts, wheel loaders and other mobile equipment and other
  vehicles, wherever located, which in each case is covered by a certificate of
  title under applicable state law, other than in each case Rental Fleet and
  Equipment. “Qualified ECP Guarantor” means, in respect of any Swap
  Obligation, each Loan Party that has total assets exceeding $10,000,000 at
  the time the relevant Guarantee or grant of the relevant security interest
  becomes effective with respect to such Swap Obligation or such other person
  as constitutes an “eligible contract participant” under the Commodity
  Exchange Act or any regulations promulgated thereunder and can cause another
  person to qualify as an “eligible contract participant” at such time by
  entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity
  Exchange Act. “Secured Debt Representative” means (i) in the case of the
  Loans, the Administrative Agent and (ii) in the case of any other Secured
  Obligations, the trustee, agent or representative of the holders of such
  tranche of Secured Obligations who maintains the transfer register for such
  tranche of Secured Obligations and (a) is appointed (as evidenced by an
  officers’ certificate delivered to the Agent) as the Secured Debt
  Representaconfidential confidential 

  






 















	
  

  	
  -9-
  #85923267v18 tive pursuant to the applicable indenture, credit agreement or
  other agreement governing such tranche of Secured Obligations, together with
  its successors in such capacity and (b) has become a party to the
  Intercreditor Agreement by executing an amendment to effectuate its joinder
  thereto. “Secured Document” means the Credit Agreement, any Additional
  Secured Documents and each of the other agreements, documents and instruments
  providing for or evidencing any other Secured Obligation and any other
  document or instrument executed or delivered at any time in connection with
  any Secured Obligations, as the same may be amended, supplemented, amended
  and restated or otherwise modified from time to time, including any
  intercreditor or joinder agreement among holders of Obligations, to the
  extent such are effective at the relevant time, as each may be amended,
  supplemented, amended and restated or otherwise modified from time to time.
  “Secured Obligations” means, (i) (a) the Obligations, and (b) any Refinancing
  Debt incurred to refinance the Indebtedness represented by the Loans or any
  such Refinancing Debt and in each case, all related Obligations and (ii) (a)
  any Additional Secured Obligations and all related Obligations and (b) any
  Refinancing Debt incurred to refinance Additional Secured Obligations or any
  such Refinancing Debt, in each case, together with all related Obligations;
  provided that Secured Obligations shall not include any Excluded Swap
  Obligations. “Secured Parties” means (a) Agent, (b) each Lender, (c) the
  beneficiaries of each indemnification obligation undertaken by Parent, the
  Borrower, any Grantor or any Guarantor under the Credit Agreement, (d) the
  holders of Refinancing Debt (and the trustee or agent thereof) referred to in
  clauses (i)(b) and (ii)(b) of the definition of “Secured Obligations”,
  Incremental Loans, holders of Additional Obligations (and the trustee or
  agent thereof), in each case, that have, or an agent or trustee thereof that
  has, entered into a Joinder and Supplement to Guarantee and Collateral
  Agreement as contemplated by Section 22(d), and (e) the successors and
  permitted assigns of each of the foregoing. “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). “Swap Obligation”
  means, with respect to any Guarantor, any obligation to pay or perform under
  any agreement, contract or transaction that constitutes a “swap” within the
  meaning of section 1a(47) of the Commodity Exchange Act. “Titled Collateral”
  means any Rolling Stock and other goods covered by certificate of title.
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  #85923267v18 “Trademark License” means rights under any written agreement now
  owned or hereafter acquired by any Grantor granting any right to use any
  Trademark. “Trademarks” means all of the following now owned or hereafter
  adopted or acquired by any Grantor: (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. “Uniform Commercial Code Jurisdiction” means any jurisdiction that
  has adopted all or substantially all of Article 9 of the Code. 2. Guarantee. (a)
  Guarantee of Secured Obligations of the Borrower. Each Guarantor hereby
  jointly and severally unconditionally guarantees to Agent and Lenders, and
  their respective successors, endorsees, transferees and assigns, for the
  benefit of Secured Parties, the prompt payment (whether at stated maturity,
  by acceleration or otherwise) and performance of the Secured Obligations.
  Each Guarantor agrees that the guarantee in this Section 2 is a guarantee of
  payment and performance and not of collection, and that its obligations under
  this Section 2 shall be primary, absolute and unconditional, irrespective of,
  and unaffected by: (i) the validity, regularity, enforceability or any future
  amendment of, or change in this Agreement, any other Loan Document or any
  other agreement, document or instrument to which any Loan Party and/or any
  Guarantor is or may become a party; (ii) the absence of any action to enforce
  this Agreement or any other Loan Document or the waiver or consent by Agent,
  Lenders or any other Secured Party with respect to any of the provisions
  thereof; (iii) the existence, value or condition of, or failure to perfect
  its Lien against, any Collateral for the Secured Obligations or any action,
  or the absence of any action, by Agent in respect thereof (including, without
  limitation, the release of any such security); (iv) the insolvency of a
  Borrower or any other Loan Party; or (v) any other action or circumstances
  which might otherwise constitute a legal or equitable discharge or defense of
  a surety or guarantor; confidential confidential 

  






 















	
  

  	
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  #85923267v18 it being agreed by each Guarantor that its obligations under
  this Section 2 shall not be discharged until the earlier to occur of (i) the
  release of such Guarantor from its obligations under this Section 2 in
  accordance with Section 17, on which date such Grantor shall be released in
  accordance with Section 17 and (ii) the date of the Discharge of Secured
  Obligations, on which date, each Guarantor shall be automatically released
  from its obligations hereunder. Each Guarantor shall be regarded, and shall
  be in the same position, as the principal debtor with respect to the Secured
  Obligations. Each Guarantor agrees that any notice or directive given at any
  time to Agent which is inconsistent with the waivers in the second preceding
  sentence shall be null and void and may be ignored by Agent and the Secured
  Parties and, in addition, may not be pleaded or introduced as evidence in any
  litigation relating to this Section 2 for the reason that such pleading or introduction
  would be at variance with the written terms of this Section 2, unless Agent
  and the Required Lenders have specifically agreed otherwise in writing. It is
  agreed among each Guarantor, Agent and Secured Parties that the foregoing
  waivers are of the essence of the transaction contemplated by the Loan
  Documents and that, but for the guarantee in this Section 2 and such waivers,
  Agent and Lenders would decline to enter into the Credit Agreement and
  Secured Parties would decline to enter into the applicable documents
  governing the Secured Obligations. (b) Demand by Agent or Lenders. In
  addition to the terms of the Guarantee set forth in Section 2(a) hereof, and
  in no manner imposing any limitation on such terms, it is expressly
  understood and agreed that, if, at any time, the outstanding principal amount
  of the Secured Obligations under the Credit Agreement (including all accrued
  interest thereon) is declared to be immediately due and payable, then
  Guarantors shall, without demand, pay to the holders of the Secured
  Obligations the entire outstanding Secured Obligations due and owing to such
  holders. Payment by Guarantors shall be made to Agent in Dollars in
  immediately available funds to an account designated by Agent or at any other
  address that may be specified in writing from time to time by Agent, and
  shall be credited and applied to the Secured Obligations. (c) Enforcement of
  Guarantee. In no event shall Agent have any obligation (although it is
  entitled, at its option in its sole discretion) to proceed against Borrower
  or any other Loan Party or any Collateral pledged to secure the Secured
  Obligations before seeking satisfaction from any or all of the Guarantors,
  and Agent may proceed, prior or subsequent to the enforcement of Agent’s
  rights hereunder, to exercise any right or remedy which it may have against
  any Collateral, as a result of any Lien it may have as security for all or
  any portion of the Secured Obligations. (d) Waiver. (i) In addition to the
  waivers contained in Section 2(a) hereof, each Guarantor hereby waives to the
  fullest extent permitted by law, and each Guarantor hereby agrees that it
  shall not at any time insist upon, plead or in any manner whatsoever claim or
  take the benefit or advantage of, any appraisal, valuation, stay, extension,
  marshaling of assets or redemption laws, or exemption, whether now or at any
  time hereafter in force, which may delay, prevent or otherwise affect the
  performance by Guarantors (or any of them) of their obligations under, or the
  enforcement by Agent, Lenders or other Secured Parties of, this Agreement.
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  #85923267v18 (ii) Guarantors hereby waive diligence and presentment (whether
  for nonpayment or protest or of acceptance, maturity, extension of time,
  change in nature or form of the Secured Obligations, acceptance of further
  security, release of further security, composition or agreement arrived at as
  to the amount of, or the terms of, the Secured Obligations, notice of adverse
  change in Parent’s, Holdings’ or any other Guarantor’s financial condition or
  any other fact which might increase the risk to Guarantors) with respect to
  any of the Secured Obligations or all other demands whatsoever and waive the
  benefit of all provisions of law which are or might be in conflict with the
  terms of this Agreement. (e) Modification of Secured Obligations, Etc. Each
  Guarantor hereby acknowledges and agrees that Agent and Secured Parties may
  at any time or from time to time, with or without the consent of, or notice
  to, Guarantors or any of them: (i) change or extend the manner, place or
  terms of payment of, or renew or alter all or any portion of, the Secured
  Obligations; (ii) take any action under or in respect of the Loan Documents
  in the exercise of any remedy, power or privilege contained therein or
  available to it at law, equity or otherwise, or waive or refrain from
  exercising any such remedies, powers or privileges; (iii) extend or waive the
  time for any Loan Party’s performance of, or compliance with, any term,
  covenant or agreement on its part to be performed or observed under the Loan
  Documents, or waive such performance or compliance or consent to a failure
  of, or departure from, such performance or compliance; (iv) (A) subject to
  the Credit Agreement, take and hold Collateral for the payment of the Secured
  Obligations guaranteed hereby or (B) upon the occurrence and during the
  continuance of an Event of Default or otherwise in accordance with the Loan
  Documents, sell, exchange, release, dispose of, or otherwise deal with, any
  property pledged, mortgaged or conveyed, or in which Agent or any Secured
  Party has been granted a Lien, to secure any of the Secured Obligations; (v)
  release any Person who may be liable in any manner for the payment of any
  amounts owed by any Guarantor or any Loan Party to Agent or any Secured
  Party; (vi) modify or terminate the terms of any intercreditor or
  subordination agreement pursuant to which claims of other creditors of any
  Guarantor or any Loan Party are subordinated to the claims of Agent and Secured
  Parties; and/or (vii) subject to the Credit Agreement, Guarantee and
  Collateral Agreement and Pledge Agreement, apply any sums by whomever paid or
  however realized to any amounts owing by any Guarantor or any Loan Party to
  Agent or any Secured Party in such manner as Agent or any Lender shall
  determine in its discretion; confidential confidential 

  






 















	
  

  	
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  #85923267v18 and none of Agent or any Secured Party shall incur any liability
  to any Guarantor as a result thereof, and no such action shall impair or
  release the Secured Obligations of any Guarantor under this Section 2
  (unless, subject to Section 2(f) below, such action results in the payment in
  full and satisfaction of the Secured Obligations). (f) Reinstatement. This
  Agreement shall remain in full force and effect and continue to be effective,
  or be reinstated, should any petition be filed by or against any Borrower or
  any Guarantor for liquidation or reorganization, should any Borrower or any
  Guarantor become insolvent or make an assignment for the benefit of creditors
  or should a receiver or trustee be appointed for all or any significant part
  of such Borrower’s or such Guarantor’s assets, and shall continue to be
  effective or be reinstated, as the case may be, if at any time payment and
  performance of the Secured Obligations, or any part thereof, is, pursuant to
  applicable law, rescinded or reduced in amount, or must otherwise be restored
  or returned by Agent or any Secured Party, whether as a “voidable
  preference”, “fraudulent conveyance”, or otherwise, all as though such
  payment or performance had not been made and such Secured Obligations shall
  be deemed reduced only by such amount paid and not so rescinded, reduced,
  restored or returned. (g) Exercise of Subrogation Rights, Etc. Notwithstanding
  anything to the contrary in this Section 2, or in any other Loan Document,
  each Guarantor hereby agrees not to exercise its rights of subrogation, to
  reimbursement, to exoneration, to contribution, to indemnification, to set
  off or to any other rights that could accrue to a surety against a principal,
  to a guarantor against a principal, to a guarantor against a maker or
  obligor, to an accommodation party against the party accommodated, to a
  holder or transferee against a maker, or to the holder of any claim against
  any Person, and which such Guarantor may have or hereafter acquire against
  any Loan Party in connection with or as a result of such Guarantor’s
  execution, delivery and/or performance of the guarantee in this Section 2, or
  any other documents to which such Guarantor is a party or otherwise until the
  Discharge of Secured Obligations. (h) Election of Remedies. If Agent may,
  under applicable law, proceed to realize benefits under any of the Loan
  Documents giving Agent and Secured Parties a Lien upon any Collateral of any
  Loan Party, either by judicial foreclosure or by non judicial sale or
  enforcement, Agent may, at its sole option, determine which of such remedies
  or rights it may pursue without affecting any of such rights and remedies
  under this Section 2. If, in the exercise of any of its rights and remedies,
  Agent shall forfeit any of its rights or remedies, including its right to
  enter a deficiency judgment against any Loan Party, whether because of any
  applicable laws pertaining to “election of remedies” or the like, each
  Guarantor hereby consents to such action by Agent and waives, to the fullest
  extent permitted by law, any claim based upon such action, even if such
  action by Agent shall result in a full or partial loss of any rights of subrogation
  which such Guarantor might otherwise have had but for such action by Agent.
  Any election of remedies which results in the denial or impairment of the
  right of Agent to seek a deficiency judgment against any Loan Party shall not
  impair each Guarantor’s obligation to pay the full amount of the Secured
  Obligations. In the event Agent shall bid at any foreclosure or trustee’s
  sale or at any private sale permitted by law or the Loan Documents, Agent may
  bid all or less than the amount of the Secured Obligations and the amount of
  such bid need not be paid by Agent but shall be credited against the Secured
  Obligations. Any difference between such bid amount and the reconfidential
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  #85923267v18 maining balance of the Secured Obligations shall be deemed to be
  the amount of the Secured Obligations guaranteed under this Agreement. (i)
  Limitation on Guarantee of Subsidiary Guarantors. Notwithstanding any
  provision herein contained to the contrary, the liability of each Guarantor
  hereunder shall be limited to an amount not to exceed as of any date of
  determination the amount which could be claimed by Agent and the Lenders from
  such Guarantor under the guarantee contained in this Agreement without
  rendering such claim voidable or avoidable under Section 548 of the
  Bankruptcy Code or any comparable provision of any other applicable law. 3.
  Grant of Lien. (a) To secure the prompt and complete payment, performance and
  observance of all of the Secured Obligations (including, without limitation,
  each Guarantor’s guarantee pursuant to Section 2(a) of this Agreement), each
  Grantor hereby grants, conveys, mortgages, pledges, hypothecates and
  transfers to Agent, for the benefit of Secured Parties, a Lien upon and a
  continuing security interest in all of its right, title and interest in, to
  and under all personal property and other assets, whether now owned by or
  owing to, or hereafter acquired by or arising in favor of such Grantor
  (including under any trade names, styles or derivations thereof), and whether
  owned or consigned by or to, or leased from or to, such Grantor, and
  regardless of where located, as collateral security for the prompt and
  complete payment and performance when due (whether at the stated maturity, by
  acceleration or otherwise) of the Secured Obligations, including: (i) all
  Accounts; (ii) all Chattel Paper; (iii) all Documents; (iv) all General
  Intangibles (including Payment Intangibles and Software); (v) all Goods
  (including Inventory (as defined in the Credit Agreement), Equipment and Fixtures);
  (vi) all Instruments; (vii) all Investment Property; (viii) all Deposit
  Accounts; (ix) all money, cash or Cash Equivalents of such Grantor; (x) all
  Supporting Obligations and Letter-of-Credit Rights of such Grantor;
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  #85923267v18 (xi) the Commercial Tort Claims described on Schedule III and on
  any supplement thereto received by Agent pursuant to Section 6(a)(vi); and
  (xii) to the extent not otherwise included, all Proceeds, tort claims,
  insurance claims and other rights to payment not otherwise included in the
  foregoing and products of the foregoing and all accessions to, substitutions
  and replacements for, and rents and profits of, each of the foregoing; all of
  which being hereinafter collectively referred to as the “Collateral”;
  provided, however, that “Collateral” shall not include, nor shall the
  security interest granted under Section 3(a) hereof attach to, any Excluded
  Property; and provided, further, that if and when any property shall cease to
  be Excluded Property, immediately at and from such time, the Collateral shall
  include, and the security interest granted by each Grantor shall attach to,
  such property. (b) In addition, to secure the prompt and complete payment,
  performance and observance of the Secured Obligations and in order to induce
  the Agent and the Lenders as aforesaid, each Grantor hereby grants to Agent,
  for itself and the benefit of Secured Parties, a right of setoff against the
  property of such Grantor held by Agent or any Secured Party, consisting of
  Collateral now or hereafter in the possession or custody of or in transit to
  Agent or any Secured Party, for any purpose, including safekeeping,
  collection or pledge, for the account of such Grantor, or as to which such
  Grantor may have any right or power. (c) [reserved] (d) Each Grantor hereby
  irrevocably authorizes Agent and its Affiliates, counsel and other
  representatives, at any time and from time to time, to file or record
  financing statements, amendments to financing statements and, with notice to
  the Borrower, other filing or recording documents or instruments with respect
  to the Collateral in such form and in such offices as Agent reasonably
  determines appropriate to perfect the security interests of Agent under this
  Agreement, and such financing statements and amendments may describe the
  Collateral covered thereby as “all assets” or “all personal property” or
  words of similar effect, whether now owned or hereafter acquired. Each
  Grantor hereby also authorizes Agent and its Affiliates, counsel and other
  representatives, at any time and from time to time, to file continuation
  statements with respect to previously filed financing statements. A
  photographic or other reproduction of this Agreement shall be sufficient as a
  financing statement or other filing or recording document or instrument for
  filing or recording in any jurisdiction. The Liens are granted as security
  only and shall not subject Agent or any other Secured Party to, or in any way
  alter or modify, any obligation or liability of any Grantor with respect to
  or arising out of the Collateral. 4. Agent’s and Secured Parties’ Rights;
  Limitations on Agent’s and Secured Parties’ Obligations. confidential
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  #85923267v18 (a) Neither Agent nor any Secured Party shall have any
  obligation or liability under any Contractual Obligation by reason of or
  arising out of this Agreement or any other Secured Document or the granting
  herein of a Lien thereon or the receipt by Agent or any Secured Party of any
  payment relating to any Contractual Obligation pursuant hereto. Neither Agent
  nor any Secured Party shall be required or obligated in any manner to perform
  or fulfill any of the obligations of any Grantor under or pursuant to any
  Contractual Obligation, or to make any payment, or to make any inquiry as to
  the nature or the sufficiency of any payment received by it or the
  sufficiency of any performance by any party under any Contractual Obligation,
  or to present or file any claims, or to take any action to collect or enforce
  any performance or the payment of any amounts which may have been assigned to
  it or to which it may be entitled at any time or times. (b) At any time after
  an Event of Default has occurred under Section 7.01(b), (c), (g) or (h) and
  is continuing, after giving notice to the relevant Grantor of its intent to
  do so, Agent may notify each of such Grantor’s Account Debtors and all other
  Persons obligated on any of the Collateral that Agent has a security interest
  therein, and that payments shall be made directly to Agent, for itself and
  the benefit of Secured Parties. Once any such notice has been given to any
  Account Debtor or other Person obligated on the Collateral, none of the
  Grantors shall give any contrary payment instructions to such Account Debtor
  or other Person without Agent’s prior written consent for so long as any
  Event of Default under Section 7.01(b), (c), (g) or (h) shall be in
  existence. (c) At any time after an Event of Default has occurred under
  Section 7.01(b), (c), (g) or (h) and is continuing, Agent may in its own
  name, in the name of a nominee of Agent or in the name of any Grantor,
  communicate (by mail, telephone, facsimile or otherwise) with Account
  Debtors, parties to Contractual Obligations and obligors in respect of
  Instruments to verify with such Persons, to Agent’s reasonable satisfaction,
  the existence, amount, terms of, and any other matter relating to, Accounts,
  Instruments, Chattel Paper and/or payment intangibles. If an Event of Default
  shall have occurred and be continuing, at Grantor’s sole expense, Agent shall
  have the right to engage a consultant for, and each Grantor shall fully
  cooperate with such consultant in, the preparation and delivery to Agent and
  each Secured Party at any time and from time to time the following reports with
  respect to such Grantor: (i) a reconciliation of all Accounts; (ii) an aging
  of all Accounts; (iii) trial balances; and (iv) a test verification of such
  Accounts as Agent may request; provided, however, if the Revolving Agent has
  engaged such a consultant, then no Grantor shall be required to pay for the
  fees, costs and expenses of any such consultant engaged by the Agent if the
  reports prepared by the consultant engaged by the Revolving Agent can be
  shared with the Agent. (d) It is understood and agreed that the security
  interests in cash and Investment Property created hereunder shall not prevent
  the Grantors from using such assets in the ordinary course of their
  respective businesses, subject to the provisions of the Control Agreements
  with respect to such cash and Investment Property. confidential confidential 

  






 















	
  

  	
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  #85923267v18 5. Representations and Warranties. To induce the Lenders to make
  the Loans, each Grantor hereby represents and warrants to Agent and each
  Secured Party, jointly and severally, that: (a) Each Grantor has rights in
  and the power to transfer each item of the Collateral upon which it purports
  to grant a Lien hereunder, free and clear of any and all Liens other than
  Permitted Liens. (b) Set forth on Schedule I hereto is (i) offices and other
  premises where Inventory or Equipment is stored or located whether or not
  owned or leased by such Grantor, and (ii) the locations of each Grantor’s
  books and records concerning the Collateral, in each case as of the date
  hereof. (c) Substantially all Titled Collateral owned by each of the Grantors
  as of June 4, 2014 is listed on Schedule II hereto, by model, model year and
  to the extent listed on the Schedule, vehicle identification number. Also set
  forth on Schedule II is the location of the title certificates for each item
  of Titled Collateral listed on such Schedule II. 6. Covenants. Without
  limiting any Grantor’s covenants and agreements contained in the Credit
  Agreement and the other Secured Documents, each Grantor covenants and agrees
  with Agent, for the benefit of Agent and Secured Parties, that from and after
  the date of this Agreement and until the Discharge of the Secured
  Obligations. (a) Further Assurances; Pledge of Instruments; Chattel Paper;
  Titled Collateral. (i) At any time and from time to time, upon the written
  request of Agent and at the sole expense of such Grantor, such Grantor shall
  promptly and duly execute and deliver any and all such further instruments
  and documents and take such further actions (including the filing and recording
  of financing statements and other documents) as may reasonably be necessary
  or advisable to obtain the full benefits of this Agreement and of the rights
  and powers herein granted with respect to the Collateral, including (A) using
  its commercially reasonable efforts to secure all consents and approvals
  necessary or appropriate for the assignment to or for the benefit of Agent of
  any Contractual Obligation held by such Grantor and to enforce the security
  interests granted hereunder; and (B) filing any financing or continuation
  statements under the Code in effect in any jurisdiction with respect to the
  Liens granted hereunder or under any other Secured Document. (ii) Unless such
  Collateral has been delivered pursuant to the Pledge Agreement, such Grantor
  shall deliver to Perfection Agent all Collateral consisting of the following
  negotiable Documents, certificated Stock, Chattel Paper and Instruments (in
  each case, accompanied by stock powers, allonges or other instruments of
  transfer executed in blank) promptly (and in any event within 20 Business
  Days) after such Grantor receives the same: (A) any negotiable Document or
  Instrument having a value in excess confidential confidential 

  






 















	
  

  	
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  #85923267v18 of $1,000,000, (B) any certificated Stock (other than
  certificated Stock of Subsidiaries of such Grantor delivered to Perfection
  Agent pursuant to the Pledge Agreement) or (C) any Chattel Paper (other than
  Chattel Paper (I) the value of which, in the aggregate for all such Chattel
  Paper, does not exceed $1,000,000 or (II) which evidences leases of Inventory
  for a period of time that is less than one month), and such Grantor will
  provide prompt written notice of receipt thereof to Agent. (iii) (A) To the
  extent such Grantor is required by the Revolving Credit Facility to undertake
  such actions with respect to the obligations thereunder and (B) after the
  Discharge of First Lien Obligations, such Grantors shall, subject to Section
  5.12 of the Credit Agreement, (I) obtain authenticated Control Agreements from
  (x) each Securities Intermediary issuing or holding any Financial Assets to
  or for such Grantor and (y) each Commodities Intermediary holding commodities
  for such Grantor; and such Grantor shall within twenty (20) Business Days
  after acquiring any Uncertificated Securities that are not credited to a
  securities account obtain from the Borrower of such Uncertificated Securities
  an acknowledgment of the pledge of such Uncertificated Securities to Agent
  granting “control” (within the meaning of Section 8-106 of the Code) over
  such Uncertificated Securities to Agent and (II) provide perfected liens in
  favor of the Agent for the benefit of the Secured Parties on Deposit Accounts
  of such Grantor. (iv) If such Grantor is or becomes the beneficiary of a
  letter of credit, such Grantor shall promptly, and in any event within twenty
  (20) Business Days after becoming a beneficiary, notify Agent thereof and,
  unless otherwise consented by Agent, cause the Borrower and/or confirmation
  bank to consent to the assignment of any Letter-of- Credit Rights to
  Perfection Agent and agree to direct all payments thereunder to a Deposit
  Account subject to a Control Agreement. (v) At any time (A) upon Agent’s
  reasonable written request, (B) unless Agent has otherwise consented in writing
  (which consent may be revoked), after an Event of Default has occurred and is
  continuing or (C) unless Agent has otherwise consented in writing (which
  consent may be revoked), such Grantor shall take all steps necessary to grant
  Perfection Agent control of all Electronic Chattel Paper in accordance with
  the Code and all “transferable records” as defined in each of the Uniform
  Electronic Transactions Act and the Electronic Signatures in Global and
  National Commerce Act. (vi) Such Grantor shall promptly, and in any event
  within twenty (20) Business Days after the same is acquired by it, notify
  Agent of Commercial Tort Claims in excess of $2,000,000, individually or in
  the aggregate, acquired by it and unless otherwise consented by Agent, such
  Grantor shall enter into a supplement to this Agreement, granting to Agent a
  Lien in such Commercial Tort Claim. Any supplement to Schedule III delivered
  pursuant to this Section 6 (a) (vi) shall, after the receipt thereof by
  Agent, become part of Schedule III for all purposes hereunder other than in
  respect of representations and warranties made prior to the date of such
  receipt. confidential confidential 

  






 















	
  

  	
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  #85923267v18 (vii) To the extent required to be delivered to Perfection Agent
  pursuant to the Revolving Credit Facility Documentation, or after the
  Discharge of First Lien Obligations, after the occurrence and during the
  continuation of an Event of Default, upon the request of the Agent, each
  Grantor shall deliver to Perfection Agent title certificates for all Titled
  Collateral from time to time owned by it and shall cause those title
  certificates to be filed (with Perfection Agent’s Lien noted thereon) in the
  appropriate state filing office. (b) [Reserved]. (c) Maintenance of Records.
  Such Grantor shall keep and maintain, at its own cost and expense,
  satisfactory and complete records of the Collateral, including a record of
  any and all payments received and any and all credits granted with respect to
  the Collateral and all other dealings with the Collateral. Such Grantor shall
  mark its books and records pertaining to the Collateral to evidence this
  Agreement and the Liens granted hereby. Upon (A) Agent’s reasonable written
  request or (B) unless Agent shall otherwise consent in writing (which consent
  may be revoked), the occurrence and during the continuance of an Event of
  Default, such Chattel Paper (other than Chattel Paper the value of which, in
  the aggregate for all such Chattel Paper, does not exceed $1,000,000) and
  Instruments (other than Instruments the value of which, in the aggregate for
  all such Instruments, does not exceed $1,000,000) shall be marked by Grantor
  with a legend to evidence this Agreement and the Liens granted hereby;
  provided that each Grantor shall be required to so mark each such Chattel Paper
  or Instrument only to the extent that the same is in such Grantor’s
  possession. (d) Covenants Regarding Patent, Trademark and Copyright
  Collateral. (i) If Grantor, either directly or through any agent, employee,
  licensee or designee, files an application for the registration of any
  Patent, Trademark or Copyright with the United States Patent and Trademark
  Office, the United States Copyright Office or any similar office or agency,
  it shall give Agent notice thereof, and, upon request of Agent, such Grantor
  shall execute and deliver any and all Intellectual Property Security
  Agreements as may be necessary to evidence Agent’s Lien on such Patent,
  Trademark or Copyright, and the General Intangibles of Grantor relating
  thereto or represented thereby if the Revolving Agent has requested similar
  security agreements be executed and delivered with respect to such
  Collateral. (ii) Such Grantor shall take all actions necessary or reasonably
  requested by Agent to maintain and pursue (and not abandon) each application,
  to obtain the relevant registration and to maintain the registration of each
  of the Patents, Trademarks and Copyrights (now or hereafter existing that is
  material to the conduct of any Grantor’s business or operations), including
  the filing of applications for renewal, affidavits of use, affidavits of
  noncontestability and opposition and interference and cancellation
  proceedings, unless such Grantor shall determine that such Patent, Trademark
  or Copyright is not material to the conduct of its business or operations.
  confidential confidential 

  






 















	
  

  	
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  #85923267v18 (iii) In the event that any of the Patent, Trademark or
  Copyright Collateral that is material to the conduct of any Grantor’s
  business or operations is infringed upon, or misappropriated or diluted by a
  third party, each Grantor shall promptly notify Agent and, if applicable,
  comply with Section 6(a)(vi) of this Agreement. Such Grantor shall, unless it
  shall reasonably determine that such Patent, Trademark or Copyright
  Collateral is not material to the conduct of its business or operations,
  promptly sue for infringement, misappropriation or dilution and to recover
  any and all damages for such infringement, misappropriation or dilution, and
  shall take such other actions as appropriate under the circumstances to
  protect such Patent, Trademark or Copyright Collateral. (e) Notices. Such
  Grantor will advise Agent promptly, in reasonable detail, of any Lien (other
  than Permitted Liens) on or claim made or asserted against a material portion
  of the Collateral of which it has knowledge, which could reasonably be
  expected to have a material adverse effect on the Collateral or the ability
  of Agent to exercise any of its remedies hereunder. (f) No Reincorporation.
  Such Grantor will give Agent at least fifteen (15) days prior written notice
  of any change to the information set forth on Schedule 1 to the Perfection
  Certificate, to the extent needed to make Schedule I or Schedule 1 to the
  Perfection Certificate up to date and accurate. Such Grantor shall not affect
  any such change unless it has taken all steps necessary or reasonably
  required by Agent to maintain continued perfection of Agent’s security
  interest in the Collateral with the same priority as prior to such change.
  Without limiting the prohibitions on mergers involving any Grantor as
  contained in the Credit Agreement, none of the Grantors shall reincorporate
  or reorganize itself under the laws of any jurisdiction other than the
  jurisdiction in which it is incorporated or organized as of the date hereof
  without complying with this subsection (f). (g) Use of Collateral. Subject to
  the terms of the Intercreditor Agreement, such Grantor will do nothing to
  impair the rights of Agent in any of the Collateral. Such Grantor will not
  use or permit any Collateral to be used unlawfully or in violation of any
  provision of applicable law, or any insurance policy covering any of the
  Collateral. Without limiting the foregoing, such Grantor will not permit the
  production of Inventory (including Rental Fleet and Equipment) in violation
  of any provision of the Fair Labor Standards Act. (h) Federal and State
  Claims. Such Grantor shall notify Agent promptly of any of the Collateral
  which constitutes a claim against the United States government or any
  instrumentality or agent thereof or any state thereof, the assignment of
  which claim is restricted by federal law or state law as the case may be.
  Upon the request of Agent, such Grantor shall take such steps as may be
  reasonably necessary to comply with any applicable federal assignment of
  claims laws or other comparable laws. 7. Bank Accounts; Collection of
  Accounts and Payments. (a) To the extent such Grantor is required to
  undertake such actions under the Revolving Credit Facility Documentation with
  respect to the obligations thereunder and (b) after the Discharge of First
  Lien Obligations, each Grantor, and any of its Affiliates, employees, agents
  and other Persons acting for or in concert with any Grantor shall, (i) acting
  as trustee for Agent and Secured confidential confidential 

  






 















	
  

  	
  -21-
  #85923267v18 Parties, receive any moneys, checks, notes, drafts or other
  payments relating to and/or constituting proceeds of Accounts or other
  Collateral which come into the possession or under the control of such
  Grantor or any Affiliates, employees, agent, or other Persons acting for or
  in concert with any Grantor, and immediately upon receipt thereof, such
  Grantor or such Persons shall, deposit the same or cause the same to be
  deposited in kind, in a Deposit Account with any financial institution or
  other account with a financial institution subject to a Control Agreement
  entered into prior to such deposit by Agent and the applicable Grantor with
  such financial institution and (ii) 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 this Section, 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 the cash and Cash Equivalents on
  deposit in such disbursement account shall not exceed $100,000 at any time
  and (C) cash and Cash Equivalents on deposit in or credited to the balance of
  withholding tax, trust and other fiduciary accounts; provided, however, that
  the Grantors shall not be in breach of this Section 7 if the Grantors comply
  with Section 6(a)(iii) hereof. 8. Agent’s Appointment as Attorney-In-Fact.
  (a) Each Grantor hereby appoints, which appointment is irrevocable and
  coupled with an interest, effective upon and during the occurrence of an
  Event of Default, Agent and any officer or agent thereof, with full power of
  substitution, as its true and lawful attorney-in-fact with full irrevocable
  power and authority in the place and stead of such Grantor and in the name of
  such Grantor or otherwise, for the purpose of carrying out the terms of this
  Agreement, to take any and all appropriate action and to execute any and all
  documents and instruments which may be necessary or desirable to accomplish
  the purposes of this Agreement, and, without limiting the generality of the
  foregoing, each Grantor hereby gives Agent the power and right, on behalf of
  such Grantor, either in Agent’s name or in the name of such Grantor or
  otherwise, without assent by such Grantor, to do any or all of the following,
  in each case after and during the occurrence of an Event of Default and after
  written notice by Agent of its intent to do so: (i) take possession of and endorse
  and collect any checks, drafts, notes, acceptances or other instruments for
  the payment of moneys due under any Account or with respect to any other
  Collateral and file any claim or take any other action or proceeding in any
  court of law or equity or otherwise deemed appropriate by Agent for the
  purpose of collecting any and all such moneys due under any Account or with
  respect to any other Collateral whenever payable; (ii) pay or discharge taxes
  and Liens levied or placed on or threatened against the Collateral; (iii)
  execute, in connection with any sale provided for in Section 9, any
  endorsements, assignments or other instruments of conveyance or transfer with
  respect to the Collateral; confidential confidential 

  






 















	
  

  	
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  #85923267v18 (iv) obtain and adjust insurance maintained by such Grantor or
  paid to Agent; (v) direct any party liable for any payment under any of the
  Collateral to make payment of any and all moneys due or to become due
  thereunder directly to Agent or as Agent shall direct; (vi) ask or demand
  for, collect and receive payment of and receipt of, any and all moneys,
  claims and other amounts due or to become due at any time in respect of or
  arising out of any Collateral; (vii) sign and endorse any invoices, freight
  or express bills, bills of lading, storage or warehouse receipts, drafts
  against debtors, assignments, verifications, notices and other documents in
  connection with any of the Collateral; (viii) commence and prosecute any
  suits, actions or proceedings at law or in equity in any court of competent
  jurisdiction to collect the Collateral or any portion thereof and to enforce
  any other right in respect of any Collateral; (ix) defend any suit, action or
  proceeding brought against such Grantor with respect to any Collateral (with such
  Grantor’s consent (not to be unreasonably withheld or delayed) to the extent
  such action or its resolution could materially affect such Grantor or any of
  its affiliates in any manner other than with respect to its continuing rights
  in such Collateral); (x) settle, compromise or adjust any such suit, action
  or proceeding and, in connection therewith, give such discharges or releases
  as Agent may deem appropriate (with such Grantor’s consent (not to be
  unreasonably withheld or delayed) to the extent such action or its resolution
  could materially affect such Grantor or any of its affiliates in any manner
  other than with respect to its continuing rights in such Collateral); and
  (xi) generally, sell, transfer, pledge and make any agreement with respect to
  or otherwise deal with any of the Collateral as fully and completely as
  though Agent were the absolute owner thereof for all purposes, and do, at
  Agent’s option and such Grantor’s expense, at any time, or from time to time,
  all acts and things that Agent deems necessary to protect, preserve or
  realize upon the Collateral and Agent’s and Secured Parties’ security
  interests therein and to effect the intent of this Agreement, all as fully
  and effectively as such Grantor might do. Anything in this Section 8 (a) to the
  contrary notwithstanding, Agent agrees that it will not exercise any rights
  under the power of attorney provided for in this Section 8 (a) unless an
  Event of Default shall have occurred and be continuing. (b) If any Grantor
  fails to perform or comply with any of its agreements contained herein,
  Agent, at its option, but without any obligation so to do, may perform or
  comply, or otherwise cause performance or compliance, with such agreement.
  confidential confidential 

  






 















	
  

  	
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  #85923267v18 (c) The expenses of Agent incurred in connection with actions
  undertaken as provided in this Section 8 shall be payable by such Grantor to
  Agent on demand. (d) Each Grantor hereby ratifies all that said attorneys
  shall lawfully do or cause to be done by virtue hereof. All powers,
  authorizations and agencies contained in this Agreement are coupled with an
  interest and are irrevocable until this Agreement is terminated and the
  security interests created hereby are released. 9. Remedies; Rights Upon
  Default. (a) In addition to all other rights and remedies granted to it under
  this Agreement, the Credit Agreement, the other Secured Documents and under
  any other instrument or agreement securing, evidencing or relating to any of
  the Secured Obligations, if any Event of Default shall have occurred and be
  continuing, Agent may, upon receipt of an Act of Required Secured Parties,
  for the benefit of Secured Parties exercise all rights and remedies of a
  secured party in respect of the Collateral under the Code as enacted in any
  such jurisdiction in effect at that time. Without limiting the generality of
  the foregoing, each Grantor expressly agrees that in any such event Agent,
  without demand of performance or other demand, advertisement or notice of any
  kind (except such notice as may be specifically required by law and the
  notice specified below of time and place of public or private sale) to or
  upon any Grantor or any other Person (all and each of which demands,
  advertisements and notices are hereby expressly waived to the maximum extent
  permitted by the Code and other applicable law), may forthwith (personally or
  through its agents or attorneys) enter upon the premises where any Collateral
  is located, without any obligation to pay rent, through self-help or
  otherwise, and may take possession of, collect, receive, assemble, process,
  appropriate, remove and realize upon the Collateral, or any part thereof, and
  may forthwith sell, lease, license, assign, give an option or options to
  purchase, or otherwise dispose of and deliver said Collateral (or contract to
  do so), or any part thereof, in one or more parcels at a public or private
  sale or sales, at any exchange at such prices as it may deem acceptable, for
  cash or on credit or for future delivery without assumption of any credit
  risk. To facilitate the foregoing, Agent shall have the right to use each
  Grantor’s books and records, to obtain access to each Grantor’s data
  processing equipment, computer hardware and software and the information
  contained therein in any manner which Agent deems appropriate. Agent or any
  Secured Parties shall have the right upon any such public sale or sales and,
  to the extent permitted by law, upon any such private sale or sales, to
  purchase for the benefit of Agent and Secured Parties, the whole or any part of
  said Collateral so sold, free of any right or equity of redemption, which
  equity of redemption each Grantor hereby releases. Such sales may be
  adjourned and continued from time to time or times as Agent deems necessary
  or advisable with or without notice. Agent shall have the right to conduct
  such sales on each Grantor’s premises or at its offices or elsewhere as
  permitted by applicable law and shall have the right to use each Grantor’s
  premises without charge for such time or times as Agent deems necessary or
  advisable. Unless the Collateral is perishable or threatens to decline
  speedily in value or is of a type customarily sold on a recognized market,
  Agent will give each Grantor reasonable notice of the time and place of any
  public sale thereof or of the time on or after which any private sale thereof
  is to be made. The requirement of reasonable notice conclusively shall be met
  if such confidential confidential 

  






 















	
  

  	
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  #85923267v18 notice is mailed, certified mail, postage prepaid, to each
  Grantor at its address set forth on the signature pages hereto or delivered
  or otherwise sent to each Grantor, at least ten (10) days before the date of
  the sale. Each Grantor expressly waives, to the fullest extent permitted by
  applicable law, any right to receive notice of any public or private sale of
  any Collateral or other security for the Secured Obligations except as
  expressly provided for in this paragraph. Agent shall not be obligated to
  make any sale of the Collateral if it shall determine not to do so regardless
  of the fact that notice of sale of the Collateral may have been given. Agent
  may, without notice or publication, except as required by applicable law,
  adjourn the sale from time to time by announcement at the time and place
  fixed for sale; and such sale may, without further notice (except as required
  by applicable law), be made at the time and place to which the same was so
  adjourned. Notwithstanding any such notice of sale, Agent shall not be
  obligated to make any sale of Collateral. If any Event of Default shall have
  occurred and be continuing, each Grantor further agrees, at Agent’s request,
  to assemble the Collateral and make it available to Agent at a place or
  places designated by Agent which are reasonably convenient to Agent and such
  Grantor, whether at such Grantor’s premises or elsewhere. Without limiting
  the foregoing, Agent shall also have the right to require that each Grantor
  store and keep any Collateral pending further action by Agent, and while
  Collateral is so stored or kept, provide such guards and maintenance services
  as shall be necessary to protect the same and to preserve and maintain
  Collateral in good condition. Until Agent is able to effect a sale, lease,
  license or other disposition of Collateral, Agent shall have the right to hold
  or use Collateral, or any part thereof, to the extent that it deems
  appropriate for the purpose of preserving Collateral or its value or for any
  other purpose deemed appropriate by Agent. Agent shall not have any
  obligation to any Grantor to maintain or preserve the rights of any Grantor
  as against third parties with respect to Collateral while Collateral is in
  the possession of Agent. Agent may, if it so elects, seek the appointment of
  a receiver or keeper to take possession of Collateral and to enforce any of
  Agent’s remedies (for the benefit of Agent and Secured Parties), with respect
  to such appointment without prior notice or hearing as to such appointment.
  Agent shall apply the net proceeds of any sale, lease, license, other
  disposition of, or any collection, recovery, receipt, or realization on, the
  Collateral to the Secured Obligations as provided in Section 10 hereof. To
  the maximum extent permitted by applicable law, each Grantor waives all
  claims, damages, and demands against Agent or any Secured Parties arising out
  of the repossession, retention or sale of the Collateral, except such as
  arise solely out of the gross negligence or willful misconduct of Agent or
  such Secured Party as finally determined by a non-appealable judgment of a
  court of competent jurisdiction. In connection with any sale, lease, license
  or other disposition of Collateral, Agent may disclaim any warranties that
  might arise in connection therewith and Agent shall have no obligation to
  provide any warranties at such time. Each Grantor shall remain liable for any
  deficiency if the proceeds of any sale or disposition of the Collateral are
  insufficient to pay all Secured Obligations or to cover reasonable and
  documented costs and expenses of such sale or disposition. (b) To the extent
  that applicable law imposes duties on Agent to exercise remedies in a
  commercially reasonable manner, each Grantor acknowledges and agrees that it
  is not commercially unreasonable for Agent (i) to fail to incur expenses
  reasonably deemed significant by Agent to prepare Collateral for disposition
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  #85923267v18 process into finished goods or other finished products for
  disposition, (ii) to fail to obtain third party consents for access to
  Collateral to be disposed of, or to obtain or, if not required by other law,
  to fail to obtain governmental or third party consents for the collection or
  disposition of Collateral to be collected or disposed of, (iii) to fail to
  exercise collection remedies against Account Debtors or other Persons
  obligated on Collateral or to remove Liens on or any adverse claims against
  Collateral, (iv) to exercise collection remedies against Account Debtors and
  other Persons obligated on Collateral directly or through the use of
  collection agencies and other collection specialists, (v) to advertise
  dispositions of Collateral through publications or media of general
  circulation, whether or not the Collateral is of a specialized nature, (vi)
  to contact other Persons, whether or not in the same business as any Grantor,
  for expressions of interest in acquiring all or any portion of such
  Collateral, (vii) to hire one or more professional auctioneers to assist in
  the disposition of Collateral, whether or not the Collateral is of a
  specialized nature, (viii) to dispose of Collateral by utilizing internet
  sites that provide for the auction of assets of the types included in
  Collateral or that have the reasonable capacity of doing so, or that match
  buyers and sellers of assets, (ix) to dispose of assets in wholesale rather
  than retail markets, (x) to disclaim disposition warranties, such as title,
  possession or quiet enjoyment, (xi) to purchase insurance or credit
  enhancements to insure Agent against risks of loss, collection or disposition
  of Collateral or to provide to Agent a guaranteed return from the collection
  or disposition of Collateral, or (xii) to the extent deemed appropriate by
  Agent, to obtain the services of other brokers, investment bankers, consultants
  and other professionals to assist Agent in the collection or disposition of
  any of the Collateral. Each Grantor acknowledges that the purpose of this
  Section 9 (b) is to provide non-exhaustive indications of what actions or
  omissions by Agent would not be commercially unreasonable in Agent’s exercise
  of remedies against the Collateral and that other actions or omissions by
  Agent shall not be deemed commercially unreasonable solely on account of not
  being indicated in this Section 9 (b). Without limitation upon the foregoing,
  nothing contained in this Section 9 (b) shall be construed to grant any
  rights to any Grantor or to impose any duties on Agent that would not have
  been granted or imposed by this Agreement or by applicable law in the absence
  of this Section 9 (b). (c) Neither Agent nor any Secured Parties shall be
  required to make any demand upon, or pursue or exhaust any of their rights or
  remedies against, any Grantor, any other obligor, guarantor, pledgor or any
  other Person with respect to the payment of the Secured Obligations or to
  pursue or exhaust any of their rights or remedies with respect to any
  Collateral therefor or any direct or indirect guarantee thereof. Neither
  Agent nor any Secured Parties shall be required to marshal the Collateral or
  any guarantee of the Secured Obligations or to resort to the Collateral or
  any such guarantee in any particular order, and all of its and their rights
  hereunder or under any other Secured Document shall be cumulative. To the
  extent it may lawfully do so, each Grantor absolutely and irrevocably waives
  and relinquishes the benefit and advantage of, and covenants not to assert
  against Agent or any Secured Parties, any valuation, stay, appraisement,
  extension, redemption or similar laws and any and all rights or defenses it
  may have as a surety now or hereafter existing which, but for this provision,
  might be applicable to the sale of any Collateral made under the judgment,
  order or decree of any court, or privately under the power of sale conferred
  by this Agreement, or otherwise. confidential confidential 

  






 















	
  

  	
  -26-
  #85923267v18 10. Application of Proceeds. Agent shall, subject to the
  Intercreditor Agreement, promptly apply the proceeds, moneys or balances of
  any collection or sale of Collateral, as well as any Collateral consisting of
  cash, as follows: (a) FIRST, to the payment of all reasonable costs and
  expenses incurred by Agent in connection with such collection or sale or
  otherwise in connection with this Agreement, any other Secured Document or
  any of the Secured Obligations, including all court costs and the reasonable
  fees and expenses of its agents and legal counsel, the repayment of all
  advances made by Agent hereunder or under any other Secured Document on
  behalf of any Grantor and any other reasonable costs or expenses incurred in
  connection with the exercise of any right or remedy hereunder or under any
  other Secured Document; (b) SECOND, to the payment in full of the Secured
  Obligations (the amounts so applied to be distributed among the Secured Parties
  pro rata in accordance with the respective amounts of the Secured Obligations
  owed to them on the date of any such distribution); and (c) THIRD, to the
  Grantors, their successors or assigns, or as a court of competent
  jurisdiction may otherwise direct. Agent shall have absolute discretion as to
  the time of application of any such proceeds, moneys or balances in
  accordance with this Agreement. Upon any sale of Collateral by Agent
  (including pursuant to a power of sale granted by statute or under a judicial
  proceeding), the receipt of the purchase money by Agent or of the officer
  making the sale shall be a sufficient discharge to the purchaser or
  purchasers of Collateral so sold and such purchaser or purchasers shall not
  be obligated to see to the application of any part of the purchase money paid
  over to Agent or such officer or be answerable in any way for the
  misapplication thereof. 11. Grant of License to Use Property. For the purpose
  of enabling Agent to exercise rights and remedies under Section 9 hereof
  (including, without limiting the terms of Section 9 hereof, in order to take
  possession of, collect, receive, assemble, process, appropriate, remove,
  realize upon, sell, lease, license, assign, give an option or options to
  purchase or otherwise dispose of Collateral) at such time as Agent shall be
  lawfully entitled to exercise such rights and remedies, each Grantor hereby
  grants to Agent, for the benefit of Agent and Secured Parties, an
  irrevocable, nonexclusive license (exercisable without payment of royalty or
  other compensation to such Grantor) to use, license or sublicense any
  Intellectual Property now owned or hereafter acquired by such Grantor, and
  wherever the same may be located, and including in such license access to all
  media in which any of the licensed items may be recorded or stored and to all
  Software and programs used for the compilation or printout thereof and an
  irrevocable license (exercisable without payment of rent or other
  compensation to such Grantor) to use and occupy all real estate owned or
  leased by such Grantor. 12. Limitation on Agent’s and Secured Parties’ Duty
  in Respect of Collateral. Agent’s sole duty with respect to the custody,
  safekeeping and physical preservation of the Collateral in its possession,
  under Section 9-207 of the UCC or otherwise, shall be to deal with it in the
  same manner as Agent deals with similar property for its own account. Agent
  and each confidential confidential 

  






 















	
  

  	
  -27-
  #85923267v18 Secured Party shall use reasonable care with respect to the Collateral
  in its possession or under its control. Neither Agent nor any Secured Parties
  shall have any other duty as to any Collateral in its possession or control
  or in the possession or control of any agent or nominee of Agent or such
  Secured Party, or any income thereon or as to the preservation of rights
  against prior parties or any other rights pertaining thereto. Agent shall be
  deemed to have exercised reasonable care in the custody and preservation of
  the Collateral in its possession if the Collateral is accorded treatment
  substantially equal to that which it accords its own property. Agent shall
  not be liable or responsible for any loss or damage to any of the Collateral,
  or for any diminution in the value thereof, by reason of the act or omission
  of any warehousemen, carrier, forwarding agency, consignee or other agent or
  bailee selected by Agent in good faith. The powers conferred on Agent and
  Secured Parties hereunder are solely to protect Agent’s and Secured Parties’
  interests in the Collateral and shall not impose any duty upon Agent or any
  Secured Party to exercise any such powers. Subject to the Intercreditor
  Agreement, the Agent shall have no duty to provide any consent or make any
  request contemplated hereby unless it shall have received an Act of Required
  Secured Parties. Agent and Secured Parties shall be accountable only for
  amounts that they actually receive as a result of the exercise of such
  powers, and neither they nor any of their officers, directors, employees or
  agents shall be responsible to any Grantor for any act or failure to act
  hereunder, except for their own gross negligence or willful misconduct. 13.
  Additional Secured Obligations. Pursuant to Sections 6.01(t) (with respect to
  Permitted Pari Passu Refinancing Debt) and 6.01(u), the Borrower may from
  time to time incur additional debt under any Additional Secured Document
  entered into from time to time by the Borrower or any of the Guarantors as
  Additional Secured Obligations for purposes hereof and the other Secured
  Documents that will rank equally and ratably to the lien upon and security
  interest in the Collateral granted pursuant to, and subject to the terms and
  conditions of the other Secured Documents by delivering to Agent a Joinder
  and Supplement to Guarantee and Collateral Agreement with respect to such
  Additional Secured Documents substantially in the form of Exhibit D hereto.
  14. Reinstatement. This Agreement shall remain in full force and effect and
  continue to be effective should any petition be filed by or against any
  Grantor for liquidation or reorganization, should any Grantor become
  insolvent or make an assignment for the benefit of any creditor or creditors
  or should a receiver or trustee be appointed for all or any significant part
  of any Grantor’s assets, and shall continue to be effective or be reinstated,
  as the case may be, if at any time payment and performance of the Secured
  Obligations, or any part thereof, is, pursuant to applicable law, rescinded
  or reduced in amount, or must otherwise be restored or returned by any
  obligee of the Secured Obligations, whether as a “voidable preference,”
  “fraudulent conveyance,” or otherwise, all as though such payment or
  performance had not been made. In the event that any payment, or any part
  thereof, is rescinded, reduced, restored or returned, the Secured Obligations
  shall be reinstated and deemed reduced only by such amount paid and not so
  rescinded, reduced, restored or returned. 15. Successors and Assigns.
  Whenever in this Agreement any of the parties hereto is referred to, such
  reference shall be deemed to include the permitted successors and assigns of
  such party; and all covenants, promises and agreements by or on behalf of any
  Grantor confidential confidential 

  






 















	
  

  	
  -28-
  #85923267v18 or Agent that are contained in this Agreement shall bind and
  inure to the benefit of their respective permitted successors and assigns.
  Prior to the discharge of the obligations under the Credit Agreement, the
  Agent hereunder shall at all times be the same person that is Agent under the
  Credit Agreement. Written notice of resignation by Agent pursuant to the
  Credit Agreement shall also constitute notice of resignation as Agent under
  this Agreement; provided, however, the Agent shall remain in its role
  hereunder as Agent until a successor is appointed. Upon the acceptance of any
  appointment as Agent under the Credit Agreement by a successor Agent, that
  successor Agent shall thereupon succeed to and become vested with all the
  rights, powers, privileges and duties of the retiring Agent pursuant hereto.
  Any business entity into which the Agent may be merged or converted or with
  which it may be consolidated, or any entity resulting from any merger,
  conversion or consolidation to which the Agent shall be a party, or any
  entity succeeding to all or substantially all of the corporate trust business
  of the Agent, shall be the successor of the Agent hereunder, without the
  execution or filing of any paper or any further act on the part of any of the
  parties hereto. 16. Agent’s Fees and Expenses; Indemnification. (a) The
  parties hereto agree that Agent shall be entitled to indemnification and
  reimbursement of its expenses incurred hereunder as provided in the Credit
  Agreement. (b) Without limiting any Grantor’s obligations under this
  Agreement, the Credit Agreement or the other Secured Documents, each Grantor
  agrees to promptly pay all reasonable fees, costs and expenses (including
  reasonable attorneys’ fees and expenses) incurred in connection with (i)
  protecting, storing, warehousing, appraising, insuring, handling, maintaining
  and shipping the Collateral, (ii) creating, perfecting, maintaining and
  enforcing Agent’s Liens and (iii) collecting, enforcing, retaking, holding,
  preparing for disposition, processing and disposing of Collateral. 17.
  Authorized Terminations. (a) Each Grantor shall automatically be released
  from its obligations hereunder (including with respect to its Guarantee) and
  the security interest in the Collateral of such Grantor shall be
  automatically released upon the consummation of any transaction not
  prohibited under any Secured Document as a result of which such Grantor
  ceases to be a Restricted Subsidiary. (b) Upon any sale or other transfer by
  any Grantor (other than any sale or transfer to another Grantor) of any
  Collateral that is not prohibited by the Credit Agreement or any other
  Secured Document, the security interest in such Collateral shall be
  automatically released and such Collateral sold free and clear of the Lien
  and security interests created hereby. (c) Following the Discharge of Secured
  Obligations pursuant to the Secured Documents, or the release pursuant to
  clause (a) or (b) above, Agent shall promptly, at the expense of the relevant
  Grantor or Parent, execute and deliver to such Grantor all documents that
  such Grantor shall reasonably request to evidence such termination or
  release, including authorization to file termination statements and releases
  in accordance with Section 9-513(c) of the Code. confidential confidential 

  






 















	
  

  	
  -29-
  #85923267v18 (d) Following the release of Liens pursuant to Section 5.1 of
  the Intercreditor Agreement, Agent shall promptly, at the expense of the
  relevant Grantor or Parent, execute and deliver to such Grantor all documents
  that such Grantor shall reasonably request to evidence such termination or
  release, including authorization to file termination statements and releases
  in accordance with Section 9-513(c) of the Code. Any execution and delivery
  of documents pursuant to this Section 17 shall be without recourse to or
  warranty by Agent. 18. Notices. Except as otherwise provided herein, whenever
  it is provided herein that any notice, demand, request, consent, approval,
  declaration or other communication shall or may be given to or served upon
  any of the parties by any other party, or whenever any of the parties desires
  to give and serve upon any other party any communication with respect to this
  Agreement, each such notice, demand, request, consent, approval, declaration
  or other communication shall be in writing and shall be given in the manner,
  and deemed received, as provided for in the Credit Agreement or other
  applicable Secured Document. 19. Limitation by Law. All rights, remedies and
  powers provided in this Agreement may be exercised only to the extent that
  the exercise thereof does not violate any applicable provision of law, and
  all the provisions of this Agreement are intended to be subject to all
  applicable mandatory provisions of law that may be controlling, and to be
  limited to the extent necessary so that they shall not render this Agreement
  invalid, unenforceable or not entitled to be recorded, registered or filed
  under the provisions of any applicable law, in each case in whole or in part.
  20. Counterparts. This Agreement and any amendments, waivers, consents or
  supplements may be executed by one or more of the parties to this Agreement
  in any number of counterparts, each of which when so executed and delivered
  shall be deemed an original, but all of which counterparts taken together
  shall constitute one and the same instrument. This Agreement shall become
  effective upon the execution of a counterpart hereof by each of the parties
  hereto. This Agreement may be authenticated by manual signature, facsimile or
  electronic transmission all of which shall be equally valid. 21. Applicable
  Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
  IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 22. Waivers;
  Amendment. (a) No failure or delay by Agent or any Secured Party in
  exercising any right, power or remedy hereunder or under any other Secured
  Document shall operate as a waiver thereof, nor shall any single or partial
  exercise of any such right, power or remedy, or any abandonment or
  discontinuance of steps to enforce such a right, power or remedy, preclude any
  other or further exercise thereof or the exercise of any other right, power
  or remedy. The rights, powers and remedies of Agent and the Secured Parties
  hereunder and under the other Secured Documents are cumulative and are not
  exclusive of any rights, powers or remedies that they would otherwise have.
  No waiver of any provision of this Agreement or consent to any departure by
  confidential confidential 

  






 















	
  

  	
  -30-
  #85923267v18 any Secured Party therefrom shall in any event be effective
  unless the same shall be permitted by paragraph (b) of this Section 22, and
  then such waiver or consent shall be effective only in the specific instance
  and for the purpose for which given. (b) Neither this Agreement nor any
  provision hereof may be waived, amended or modified except pursuant to an
  agreement or agreements in writing entered into by Agent (acting at the
  direction of each Secured Debt Representative) and the Grantors with respect
  to which such waiver, amendment or modification is to apply. (c) [reserved].
  (d) Upon the incurrence of Additional Secured Obligations, the holders of
  such Additional Secured Obligations or the trustee or agent on behalf of such
  holders shall execute and deliver a Joinder and Supplement to Guarantee and
  Collateral Agreement substantially in the form of Exhibit D hereto, to
  provide that the new holders (and/or the trustee or agent for such holders)
  shall be Additional Secured Parties hereunder, which joinder shall provide
  for the appointment of Agent as agent for such holder(s) in the form included
  in Exhibit D hereto. Upon the execution and delivery by such holder(s) (or
  trustee or agent) and the other parties thereto of the Joinder and Supplement
  to Guarantee and Collateral Agreement, such holder(s) (or trustee or agent
  for such holders) shall become Additional Secured Parties hereunder with the
  same force and effect as if it were originally a party to this Agreement and
  named as a “Secured Party” herein. The execution and delivery of such Joinder
  and Supplement to Guarantee and Collateral Agreement shall not require the
  consent of any other Secured Party hereunder, and the rights and obligations
  of each Secured Party hereunder shall remain in full force and effect
  notwithstanding the addition of any new Secured Party as a party to this Agreement.
  For the purpose of this Section 22 (d), Agent shall be entitled to rely upon
  an officers’ certificate of the Parent that such Additional Secured
  Obligations constitute “Permitted Pari Passu Refinancing Debt” pursuant to
  6.01(t) or permitted debt pursuant to 6.01(u) of the Credit Agreement and, if
  applicable, with respect to any Additional Secured Document, that such
  Additional Secured Obligations are entitled to the benefits of the pledge and
  grant of security interest contained in this Agreement. 23. Additional
  Grantors. If, pursuant to the Secured Debt Documents, the Parent shall be
  required to cause any Subsidiary that is not a Grantor to become a Grantor
  hereunder, such Subsidiary shall execute and deliver to Agent a Joinder
  Agreement substantially in the form of Exhibit E hereto and shall thereafter
  for all purposes be a party hereto and have the same rights, benefits and
  obligations as a Grantor party hereto on the date hereof. 24. Headings.
  Section 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. 25. Subject to the Intercreditor Agreement.
  Notwithstanding anything herein to the contrary, the lien and security
  interest granted to Agent pursuant to this Agreement and the exercise of any
  right or remedy by Agent hereunder are subject to the provisions of the
  Intercreditor Agreement, dated as of June 9, 2014 as the same may be amended,
  supplemented, confidential confidential 

  






 















	
  

  	
  -31-
  #85923267v18 modified or replaced from time to time (the “Intercreditor
  Agreement”) among Bank of America, N.A., as First Lien Agent, Credit Suisse
  AG, as Second Lien Collateral Agent, Bank of America, N.A., as Control Agent
  and the Grantors from time to time a party thereto. In the event of any
  conflict between the terms of the Intercreditor Agreement and this Agreement,
  the terms of the Intercreditor Agreement shall govern. Compliance by any
  Grantor with any term of the Intercreditor Agreement shall not result in any
  breach or other violation of any term of this Agreement. 26. Keepwell. Each
  Qualified ECP Guarantor hereby jointly and severally absolutely,
  unconditionally and irrevocably undertakes to provide such funds or other
  support as may be needed from time to time by each other Loan Party to honor
  all of its obligations under this Agreement in respect of Swap Obligations
  (provided, however, that each Qualified ECP Guarantor shall only be liable
  under this Section 26 for the maximum amount of such liability that can be
  hereby incurred without rendering its obligations under this Section 26, or
  otherwise under this Agreement, voidable under applicable law relating to
  fraudulent conveyance or fraudulent transfer, and not for any greater
  amount). The obligations of each Qualified ECP Guarantor under this Section
  26 shall remain in full force and effect until a Discharge of Secured
  Obligations. Each Qualified ECP Guarantor intends that this Section 26
  constitute, and this Section 26 shall be deemed to constitute, a “keepwell,
  support, or other agreement” for the benefit of each other Loan Party for all
  purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
  [Remainder of Page Intentionally Left Blank] confidential confidential 

  






 















	
  

  	
  #85923267v18 EXHIBIT
  A FORM OF PERFECTION CERTIFICATE Reference is hereby made to (i) that certain
  Guarantee and Collateral Agreement dated as of June 9, 2014 (as amended
  supplemented or otherwise modified from time to time, the “Security
  Agreement”), among Neff Rental LLC, a Delaware limited liability company (the
  “Borrower”), Neff Holdings LLC, a Delaware limited liability company
  (“Holdings”), Neff LLC, a Delaware limited liability company (the “Parent”,
  and together with Holdings and the other parties to the Security Agreement as
  grantors, the “Grantors”) and Credit Suisse AG, as collateral agent (the
  “Agent”) and (ii) that certain Second Lien Credit Agreement dated as of June
  9, 2014 (as amended supplemented or otherwise modified from time to time, the
  “Credit Agreement”) among the Borrower, the other Grantors, the Lenders from
  time to time party thereto, the Agent and Credit Suisse AG, as Administrative
  Agent. Capitalized terms used but not defined herein have the meanings
  provided for in the Security Agreement. As used herein, the term “Companies”
  means the Borrower and the other Grantors. The undersigned hereby certify to
  the Agent as follows: 1. Names. (a) The exact legal name of each Company, as
  such name appears in its respective certificate of incorporation or any other
  organizational document, is set forth in Schedule 1(a). Each Company is the
  type of entity disclosed next to its name in Schedule 1(a) and a registered
  organization except to the extent disclosed in Schedule 1(a). Also set forth
  in Schedule 1(a) is the organizational identification number, if any, of each
  Company that is a registered organization, the Federal Taxpayer
  Identification Number of each Company and the jurisdiction of formation of
  each Company. (b) Set forth in Schedule 1(b) hereto is any other corporate or
  organizational names each Company has had in the past five years, together
  with the date of the relevant change. (c) Set forth in Schedule 1(c) is a
  list of all other names used by each Company, or any other business or
  organization to which each Company became the successor by merger,
  consolidation, acquisition, change in form, nature or jurisdiction of
  organization or otherwise, on any filings with the Internal Revenue Service
  at any time during the past five years, together with the date of the
  relevant change. Except as set forth in Schedule 1(c), no Company has changed
  its jurisdiction of organization at any time during the past four months. 2.
  Current Locations. The chief executive office of each Company is located at
  the address set forth in Schedule 2 hereto. confidential confidential 

  






 















	
  

  	
  -2-
  #85923267v18 3. Extraordinary Transactions. Except for those purchases,
  acquisitions and other transactions described on Schedule 3 attached hereto,
  all of the Collateral has been originated by each Company in the ordinary
  course of business or consists of goods which have been acquired by such
  Company in the ordinary course of business from a person in the business of
  selling goods of that kind. 4. Stock Ownership and Other Equity Interests.
  Attached hereto as Schedule 4(a) is a true and correct list of each of all of
  the authorized, and the issued and outstanding, stock, partnership interests,
  limited liability company membership interests or other equity interest of
  the Parent and its Subsidiaries and the record and beneficial owners of such
  stock, partnership interests, membership interests or other equity interests.
  Also set forth on Schedule 4(b) is each equity investment of each Company
  that represents 50% or less of the equity of the entity in which such
  investment was made. 5. Instruments and Tangible Chattel Paper. Attached
  hereto as Schedule 5 is a true and correct list of all promissory notes,
  instruments (other than checks to be deposited in the ordinary course of
  business), tangible chattel paper, electronic chattel paper and other
  evidence of indebtedness held by each Company as of the date hereof having a
  principal amount in excess of $1.0 million, including all intercompany notes
  between or among any two or more Companies or any of their Subsidiaries. 6.
  Intellectual Property. Attached hereto as Schedule 6(a) is a schedule setting
  forth all of each Company’s Patents, Patent Licenses, Trademarks and
  Trademark Licenses (each as defined in the Security Agreement) registered
  with the United States Patent and Trademark Office, and all other Patents,
  Patent Licenses, Trademarks and Trademark Licenses, including the name of the
  registered owner and the registration number of each Patent, Patent License,
  Trademark and Trademark License owned by each Company. Attached hereto as
  Schedule 6(b) is a schedule setting forth all of each Company’s United States
  Copyrights and Copyright Licenses (each as defined in the Security
  Agreement), and all other Copyrights and Copyright Licenses, including the
  name of the registered owner and the registration number of each Copyright or
  Copyright License owned by each Company. 7. Commercial Tort Claims. Attached
  hereto as Schedule 7 is a true and correct list of all Commercial Tort Claims
  held by each Company, including a brief description thereof, which have a
  value reasonably believed by the Companies to be, individually or in the
  aggregate, in excess of $2.0 million. 8. Deposit Accounts, Securities
  Accounts and Commodity Accounts. Attached hereto as Schedule 8 is a true and
  complete list of all Deposit Accounts, securities accounts and commodity
  accounts maintained by each Company, including the name of each institution
  where each such account is held, the name of each such account and the name
  of each entity that holds each account. confidential confidential 

  






 















	
  

  	
  -3-
  #85923267v18 9. Letter-of-Credit Rights. Attached hereto as Schedule 9 is a
  true and correct list of all letters of credit issued in favor of each
  Company, as beneficiary thereunder having a value in excess of $1.0 million.
  10. Motor Vehicles. Attached hereto as Schedule 10 is a true and correct list
  of all motor vehicles (covered by certificates of title or ownership) which
  were purchased for over $50,000 as of June 4, 2014 were owned by each
  Company, and the owner and location of such motor vehicles. confidential
  confidential 

  






 















	
  

  	
  #85923267v18
  EXHIBIT B FORM OF PERFECTION CERTIFICATE SUPPLEMENT This Pefection
  Certificate Supplement is delivered pursuant to Section 5.04(d) of the Credit
  Agreement (as defined below). Reference is hereby made to (i) that certain
  Guarantee and Grantors Agreement dated as of June 9, 2014 (as amended
  supplemented or otherwise modified from time to time, the “Security
  Agreement”), among Neff Rental LLC, a Delaware limited liability company (the
  “Borrower”), Neff Holdings LLC, a Delaware limited liability company
  (“Holdings”), Neff LLC, a Delaware limited liability company (the “Parent”,
  and together with Holdings and the other parties to the Security Agreement as
  grantors, the “Guarantors”) and Credit Suisse AG, as collateral agent (the
  “Agent”) and (ii) that certain Second Lien Credit Agreement dated as of June
  9, 2014 (as amended supplemented or otherwise modified from time to time, the
  “Credit Agreement”) among the Borrower, the other Guarantors, the Lenders
  from time to time party thereto, the Agent and Credit Suisse AG, as
  Administrative Agent. Capitalized terms used but not defined herein have the
  meanings provided for in the Security Agreement. As used herein, the term
  “Companies” means the Borrower and the other Guarantors. The undersigned
  hereby certify to the Agent as follows: 2. Names. (d) The exact legal name of
  each Company, as such name appears in its respective certificate of
  incorporation or any other organizational document, is set forth in Schedule
  1(a). Each Company is the type of entity disclosed next to its name in
  Schedule 1(a) and a registered organization except to the extent disclosed in
  Schedule 1(a). Also set forth in Schedule 1(a) is the organizational
  identification number, if any, of each Company that is a registered
  organization, the Federal Taxpayer Identification Number of each Company and
  the jurisdiction of formation of each Company. (e) Set forth in Schedule 1(b)
  hereto is any other corporate or organizational names each Company has had in
  the past five years, together with the date of the relevant change. (f) Set
  forth in Schedule 1(c) is a list of all other names used by each Company, or
  any other business or organization to which each Company became the successor
  by merger, consolidation, acquisition, change in form, nature or jurisdiction
  of organization or otherwise, on any filings with the Internal Revenue
  Service at any time during the past five years, together with the date of the
  relevant change. Except as set forth in Schedule 1(c), no Company has changed
  its jurisdiction of organization at any time during the past four months.
  confidential confidential 

  






 















	
  

  	
  -2-
  #85923267v18 11. Current Locations. The chief executive office of each
  Company is located at the address set forth in Schedule 2 hereto. 12.
  Extraordinary Transactions. Except for those purchases, acquisitions and
  other transactions described on Schedule 3 attached hereto, all of the
  Collateral has been originated by each Company in the ordinary course of
  business or consists of goods which have been acquired by such Company in the
  ordinary course of business from a person in the business of selling goods of
  that kind. 13. Stock Ownership and Other Equity Interests. Attached hereto as
  Schedule 4(a) is a true and correct list of each of all of the authorized,
  and the issued and outstanding, stock, partnership interests, limited
  liability company membership interests or other equity interest of the Parent
  and its Subsidiaries and the record and beneficial owners of such stock,
  partnership interests, membership interests or other equity interests. Also
  set forth on Schedule 4(b) is each equity investment of each Company that
  represents 50% or less of the equity of the entity in which such investment
  was made. 14. Instruments and Tangible Chattel Paper. Attached hereto as
  Schedule 5 is a true and correct list of all promissory notes, instruments
  (other than checks to be deposited in the ordinary course of business),
  tangible chattel paper, electronic chattel paper and other evidence of
  indebtedness held by each Company as of the date hereof having a principal
  amount in excess of $1.0 million, including all intercompany notes between or
  among any two or more Companies or any of their Subsidiaries. 15.
  Intellectual Property. Attached hereto as Schedule 6(a) is a schedule setting
  forth all of each Company’s Patents, Patent Licenses, Trademarks and
  Trademark Licenses (each as defined in the Security Agreement) registered
  with the United States Patent and Trademark Office, and all other Patents,
  Patent Licenses, Trademarks and Trademark Licenses, including the name of the
  registered owner and the registration number of each Patent, Patent License,
  Trademark and Trademark License owned by each Company. Attached hereto as
  Schedule 6(b) is a schedule setting forth all of each Company’s United States
  Copyrights and Copyright Licenses (each as defined in the Security
  Agreement), and all other Copyrights and Copyright Licenses, including the name
  of the registered owner and the registration number of each Copyright or
  Copyright License owned by each Company. 16. Commercial Tort Claims. Attached
  hereto as Schedule 7 is a true and correct list of all Commercial Tort Claims
  held by each Company, including a brief description thereof, which have a
  value reasonably believed by the Companies to be, individually or in the
  aggregate, in excess of $2.0 million. 17. Deposit Accounts, Securities
  Accounts and Commodity Accounts. Attached hereto as Schedule 8 is a true and
  complete list of all Deposit Accounts, securities accounts and commodity
  accounts maintained by each Company, including the name of each institution
  where each such account is held, the name of each such account and the name
  of each entity that holds each account. confidential confidential 

  






 















	
  

  	
  -3-
  #85923267v18 18. Letter-of-Credit Rights. Attached hereto as Schedule 9 is a
  true and correct list of all letters of credit issued in favor of each
  Company, as beneficiary thereunder having a value in excess of $1.0 million.
  19. Motor Vehicles. Attached hereto as Schedule 10 is a true and correct list
  of all motor vehicles (covered by certificates of title or ownership) which
  were purchased for over $50,000 and currently owned by each Company, and the
  owner and location of such motor vehicles. confidential confidential 

  






 















	
  

  	
  #85923267v18
  EXHIBIT C FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT THIS INTELLECTUAL
  PROPERTY SECURITY AGREEMENT (together with all amendments, if any, from time
  to time, this “Intellectual Property Security Agreement”), dated as [.], is
  made by EACH OF THE GRANTORS LISTED ON THE SIGNATURE PAGES HERETO AND EACH
  ADDITIONAL PARTY WHICH BECOMES A GRANTOR HERETO PURSUANT TO SECTION 8 HEREOF
  (collectively, “Grantors” and each, a “Grantor”), in favor of CREDIT SUISSE
  AG, in its capacity as Collateral Agent for the Secured Parties (in such
  capacity, together with its successors and assigns in such capacity, if any,
  the “Agent”) W I T N E S S E T H: WHEREAS, pursuant to that certain Second
  Lien Credit Agreement (the “Credit Agreement”), dated as of June 9, 2014,
  among NEFF RENTAL LLC, a Delaware limited liability company (the “Borrower”),
  NEFF LLC, a Delaware limited liability company (the “Parent”), NEFF HOLDINGS
  LLC, a Delaware limited liability company (“Holdings”), the Lenders and
  CREDIT SUISSE AG (“Credit Suisse”), as Agent and as Administrative Agent; and
  WHEREAS, it is a condition precedent to making the Loans to the Borrower that
  each Grantor shall have executed and delivered to the Agent the Guarantee and
  Collateral Agreement, dated as of June 9, 2014, among the Borrower, the
  Grantors, the Guarantors and the Agent, pursuant to which each Grantor
  pledged a security interest in all its Collateral for the benefit of the
  Agent and the other Secured Parties; WHEREAS, Grantors directly or indirectly
  benefit from the Loans to the Borrower under the Credit Agreement and to
  induce the Lenders to make the Loans, Grantors desire to grant a continuing
  Lien to the Agent on the Intellectual Property Collateral, for the benefit of
  the Agent and the other Secured Parties, to secure all of the Secured
  Obligations; NOW, THEREFORE, in consideration of the premises and mutual
  covenants herein contained and for other good and valuable consideration, the
  receipt and sufficiency of which are hereby acknowledged, the parties hereto
  agree as follows: 1. DEFINED TERMS. All capitalized terms used (including in
  the Recitals hereto) but not otherwise defined herein have the meanings given
  to them in the Guarantee and Collateral Agreement. 2. GRANT OF SECURITY
  INTEREST IN INTELLECTUAL PROPERTY COLLATERAL. (a) To secure the prompt and
  complete payment, performance and observance of all the Secured Obligations,
  each Grantor hereby grants, assigns, conveys, mortgages, pledges,
  hypothecates and transfers to Agent, for itself and the benefit of the
  Secured Parties, a continuing first priority security interest in and Lien
  upon all of its right, title and interest in, to and under the following,
  whether presently existing or hereafter created or acquired by or arising in
  favor of such Grantor and whether owned or consigned by or to, or licensed
  from or to, such Grantor (collectively, the “Intellectual Property
  Collateral”): confidential confidential 

  






 















	
  

  	
  -2- #85923267v18
  (i) [all of its Patents and Patent Licenses to which it is a party including
  those referred to on Schedule I hereto;] (ii) [all of its Trademarks (except
  by law those which cannot be assigned and other than intent to use trademarks
  (ITUs) until such time as a statement of use is filed;] (iii) [all of its
  Copyrights and Copyright Licenses to which it is a party including those
  referred to on Schedule I hereto;] (iv) all reissues, continuations or
  extensions of the foregoing; (v) all products and proceeds of the foregoing,
  including, without limitation, any claim by such Grantor against third
  parties for past, present or future (A) infringement or dilution of any
  Patent or Patent licensed under any Patent License, (B) injury to the
  goodwill associated with any Patent or any Patent licensed under any Patent
  License, (C) infringement or dilution of any Trademark or Trademark licensed
  under any Trademark License, (D) injury to the goodwill associated with any
  Trademark or any Trademark licensed under any Trademark License, (E)
  infringement or dilution of any Copyright or Copyright licensed under any
  Copyright License, and (F) injury to the goodwill associated with any
  Copyright or any Copyright licensed under any Copyright License. (b) In
  addition, to secure the prompt and complete payment, performance and
  observance of the Secured Obligations and in order to induce the Lenders as
  aforesaid, each Grantor hereby grants to Agent, for itself and the benefit of
  Secured Parties, a right of setoff, against the property of such Grantor held
  by Agent or any other Secured Party, consisting of property described above
  in Section 2(a) now or hereafter in the possession or custody of or in
  transit to Agent or any other Secured Party, for any purpose, including
  safekeeping, collection or pledge, for the account of such Grantor, or as to
  which such Grantor may have any right or power. 3. REPRESENTATIONS AND
  WARRANTIES. Each Grantor, jointly and severally, represents and warrants, as
  of the date hereof, that (a) each Patent, (b) each Trademark that is
  registered or pending registration with the US Patent and Trademark Office,
  (c) each Copyright that is registered or pending registration with the US
  Copyright Office, (d) material unregistered trademarks, service marks and
  trade names, (e) material unregistered copyrights, (f) computer software
  (other than commercially available off-the-shelf software purchased or
  licensed for less than a total cost of $500,000 in the aggregate); and (g)
  each License, is set forth on the schedules hereto. This Intellectual
  Property Security Agreement is effective to create a valid and continuing
  Lien on and, upon the filing hereof with the United States Patent and
  Trademark Office and the United States Copyright Office, as applicable and
  the filing of appropriate financing statements with the filing offices on
  Schedule 3.19 to the Credit Agreement, perfected security interests in favor
  of Agent in all of Grantors’ Patents, Trademarks and Copyrights and such
  perfected security interests are enforceable as such as against any and all
  creditors of, and purchasers from, Grantors. Upon filing of this Intellectual
  Property Security Agreement with the United States Patent and Trademark
  Office and the United States Copyright Office, as applicable confidential confidential
  

  






 















	
  

  	
  -3-
  #85923267v18 and the filing of appropriate financing statements with the
  filing offices on Schedule 3.19 to the Credit Agreement, all action necessary
  or otherwise requested by Agent to protect and perfect Agent’s Lien on
  Grantor’s Patents, Trademarks and Copyrights shall have been duly taken. In
  addition to any representations and warranties contained herein, each Grantor
  hereby acknowledges and affirms the representations and warranties made to
  Agent with respect to the Intellectual Property Collateral made in the
  Guarantee and Collateral Agreement, the terms and provisions of which are
  incorporated by reference herein as if fully set forth herein. 4. COVENANTS;
  GUARANTEE AND COLLATERAL AGREEMENT. The security interests granted pursuant
  to this Intellectual Property Security Agreement are granted in conjunction
  with the security interests granted to Agent pursuant to the Guarantee and
  Collateral Agreement. In addition to the covenants contained herein, each
  Grantor hereby acknowledges and affirms the covenants of such Grantor with
  respect to the Intellectual Property Collateral in the Guarantee and
  Collateral Agreement, the terms and provisions of which are incorporated
  herein as if fully set forth herein. In addition, each Grantor hereby
  acknowledges and affirms that the rights and remedies of Agent with respect
  to the security interest in the Intellectual Property Collateral made and
  granted hereby are more fully set forth in the Guarantee and Collateral
  Agreement, the terms and provisions of which are incorporated by reference
  herein as if fully set forth herein. 5. REINSTATEMENT. This Intellectual
  Property Security Agreement shall remain in full force and effect and
  continue to be effective should any petition be filed by or against any
  Grantor or other Loan Party for liquidation or reorganization, should any
  Grantor or other Loan Party become insolvent or make an assignment for the
  benefit of any creditor or creditors or should a receiver or trustee be
  appointed for all or any significant part of any Grantor’s or other Loan
  Party’s assets, and shall continue to be effective or be reinstated, as the
  case may be, if at any time payment and performance of the Secured
  Obligations, or any part thereof, is, pursuant to applicable law, rescinded
  or reduced in amount, or must otherwise be restored or returned by any
  obligee of the Secured Obligations, whether as a “voidable preference,”
  “fraudulent conveyance,” or otherwise, all as though such payment or
  performance had not been made. In the event that any payment, or any part
  thereof, is rescinded, reduced, restored or returned, the Secured Obligations
  shall be reinstated and deemed reduced only by such amount paid and not so
  rescinded, reduced, restored or returned. 6. NOTICES. Whenever it is provided
  herein that any notice, demand, request, consent, approval, declaration or
  other communication shall or may be given to or served upon any of the
  parties by any other party, or whenever any of the parties desires to give or
  serve upon another any such communication with respect to this Intellectual
  Property Security Agreement, each such notice, demand, request, consent,
  approval, declaration or other communication shall be in writing and shall be
  addressed to the party to be notified at the address set forth in Section 18
  of the Security Agreement. 7. ADDITIONAL GRANTORS. The initial Grantors
  hereunder are the Credit Agreement Parties as are signatories hereto on the
  date hereof. From time to time subseconfidential confidential 

  






 















	
  

  	
  -4- #85923267v18
  quent to the date hereof, additional Credit Agreement Parties may become
  parties hereto, as additional Grantors (each, an “Additional Grantor”), by
  executing a counterpart of this Intellectual Property Security Agreement
  substantially in the form of Exhibit A attached hereto. Upon delivery of any
  such counterpart to Agent, notice of which is hereby waived by the Grantors,
  each Additional Grantor shall be a Grantor and shall be as fully a party
  hereto as if such Additional Grantor were an original signatory hereto. Each
  Grantor expressly agrees that its obligations arising hereunder shall not be
  affected or diminished by the addition or release of any other Grantor
  hereunder nor by any election of Agent not to cause any Loan Party or any
  other Person to become an Additional Grantor hereunder. This Intellectual
  Property Security Agreement shall be fully effective as to any Grantor that
  is or becomes a party hereto regardless of whether any other Person becomes
  or fails to become or ceases to be a Grantor hereunder. 8. TERMINATION OF
  THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT. Subject to Section 5 hereof,
  this Intellectual Property Security Agreement shall terminate upon the
  Discharge of Secured Obligations. 9. NO STRICT CONSTRUCTION. The parties
  hereto have participated jointly in the negotiation and drafting of this
  Intellectual Property Security Agreement. In the event an ambiguity or
  question of intent or interpretation arises, this Intellectual Property
  Security Agreement shall be construed as if drafted jointly by the parties
  hereto and no presumption or burden of proof shall arise favoring or
  disfavoring any party by virtue of the authorship of any provisions of this
  Intellectual Property Security Agreement. 10. ADVICE OF COUNSEL. Each of the
  parties represents to each other party hereto that it has discussed this
  Intellectual Property Security Agreement with its counsel. [REMAINDER OF PAGE
  INTENTIONALLY LEFT BLANK] confidential confidential 

  






 















	
  

  	
  #85923267v18 IN
  WITNESS WHEREOF, each Grantor has caused this Intellectual Property Security
  Agreement to be executed and delivered by its duly authorized officer as of
  the date first set forth above. GRANTORS [GRANTOR] By: Name: Title:
  Acknowledged and Agreed CREDIT SUISSE AG, Cayman Islands Branch, as Agent By:
  Name: Title: By: Name: Title: confidential confidential 

  






 















	
  

  	
  #85923267v18
  SCHEDULE I to INTELLECTUAL PROPERTY SECURITY AGREEMENT I. TRADEMARK
  REGISTRATIONS Grantor Mark Reg. No. Date II. TRADEMARK APPLICATIONS Grantor
  Mark Application No. Date III. TRADEMARK LICENSES Grantor Name of Agreement
  Date of Agreement Parties confidential confidential 

  






 















	
  

  	
  #85923267v8
  #85923267v18 EXHIBIT A COUNTERPART TO INTELLECTUAL PROPERTY SECURITY
  AGREEMENT This counterpart, dated _________ is delivered pursuant to Section
  7 of that certain Intellectual Property Security Agreement dated as of [.]
  (as from time to time amended, modified or supplemented, the “IP Security
  Agreement”; the terms defined therein and not otherwise defined herein being
  used as therein defined), among [__________________], as Grantor[ s] and
  Credit Suisse AG, as Agent. The undersigned hereby agrees (i) that this
  counterpart may be attached to the IP Security Agreement, and (ii) that the
  undersigned will comply with and be subject to, including representations and
  warranties, all the terms and conditions of the IP Security Agreement as if
  it were an original signatory thereto. [NAME OF ADDITIONAL GRANTOR]
  By:______________________________ Name: Title: confidential confidential 

  






 















	
  

  	
  #85923267v18
  EXHIBIT D FORM OF JOINDER AND SUPPLEMENT to GUARANTEE AND COLLATERAL
  AGREEMENT Reference is made to that certain Guarantee and Collateral
  Agreement, dated as of June 9, 2014 (as the same may be amended,
  supplemented, restated or otherwise modified from time to time, the
  “Guarantee and Collateral Agreement”), among NEFF RENTAL LLC, a Delaware
  limited liability company (the “Borrower”), NEFF HOLDINGS LLC, a Delaware
  limited liability company (“Holdings”), NEFF LLC, a Delaware limited
  liability company (the “Parent,” and together with Holdings, the
  “Guarantors”), and each other Person which becomes party hereto as Grantor
  pursuant to Section 23 of the Guarantee and Collateral Agreement (such
  Persons, together with the Borrower, Holdings and Parent, collectively, the
  “Grantors” and each, a “Grantor”), and CREDIT SUISSE AG, in its capacities as
  administrative agent and collateral agent for the Secured Parties (in such
  capacities, together with its successors and assigns in such capacities, if
  any, the “Agent”). This Joinder and Supplement to Guarantee and Collateral
  Agreement (this “Agreement”), dated as of [_________] (the “Effective Date”),
  is entered into among (i) [_________], as agent or trustee (the “New Agent”)
  under that certain [________] (the “New Additional Secured Document”), dated
  as of the date hereof, among [Secured Parties], (ii) the Grantors and (iii)
  the Agent, pursuant to Section 22(d) of the Guarantee and Collateral
  Agreement. The lien and security interest granted by the Grantors to secure
  the obligations of the Grantors under the New Additional Secured Document
  (the “New Secured Obligations”) will rank equally and ratably to the lien
  upon and security interests in the Collateral that secures the other Secured
  Obligations. On and after the Effective Date, the New Secured Obligations
  constitute “Additional Secured Obligations” under the Guarantee and
  Collateral Agreement. The parties to this Agreement hereby agree as follows:
  A. All [“Obligations” under (and as defined in)][obligations under] the New Additional
  Secured Document shall constitute “Additional Secured Obligations” and
  “Secured Obligations” for all purposes of the Guarantee and Collateral
  Agreement. The [New Additional Secured Document] shall constitute an
  “Additional Secured Document” for all purposes of the Guarantee and
  Collateral Agreement. B. Without limiting clause (A) above, any and all
  principal, interest, penalties, fees, indemnifications, reimbursements,
  damages and other liabilities payable by each of the Grantors to the holders
  of the New Secured Obligations under the documentation entered into in
  connection with the New Secured Obligations as they may exist from time to
  time shall constitute “Additional Secured Obligations” and “Secured
  Obligations” for all purposes of the Guarantee and Collateral Agreement.
  confidential confidential 

  






 















	
  

  	
  #85923267v18 C.
  The holders of the New Secured Obligations and the New Agent (collectively,
  the “Additional Secured Parties”) shall constitute “Additional Secured
  Parties” and “Secured Parties” for all purposes of the Guarantee and
  Collateral Agreement. D. Each reference to an “Event of Default” contained in
  the Security Agreement shall be deemed to be a reference to either an “Event
  of Default” under (and as defined in) the existing Credit Agreement or an
  “Event of Default” under (and as defined in) the New Additional Secured
  Document or any other Secured Document. E. Each Grantor hereby confirms that
  (i) the New Secured Obligations are permitted to be incurred under the Credit
  Agreement and, if applicable, with respect to any Additional Secured
  Document, (ii) the New Secured Obligations are entitled to the benefits of
  the pledge and grant of security interest contained in the Guarantee and
  Collateral Agreement (it being understood that such pledge and security
  interest shall secure all New Secured Obligations) and (iii) the Guarantee
  and Collateral Agreement is, and shall continue to be, in full force and
  effect and is ratified and confirmed in all respects. Each Grantor ratifies
  and confirms that all liens granted, conveyed, or assigned to the Agent
  pursuant to Guarantee and Collateral Agreement remain in full force and
  effect, are not released or reduced, and continue to secure full payment and
  performance of the Secured Obligations as increased hereby. F. The Agent
  confirms that it is willing to act and, on and after the Effective Date, will
  act, as “Agent” under the Guarantee and Collateral Agreement on behalf of the
  Additional Secured Parties on the same terms and conditions under which it
  acts on behalf of the Secured Parties (as such term is defined prior to the
  Effective Date) under the Guarantee and Collateral Agreement. G. This
  Agreement shall be construed in accordance with and governed by the laws of
  the State of New York. H. This Agreement may be executed in counterparts,
  each of which shall constitute an original but all of which when taken
  together shall constitute a single contract. Delivery of an executed
  signature page to this Agreement by facsimile transmission shall be as
  effective as delivery of a manually signed counterpart of this Agreement. I.
  Notwithstanding anything herein or in the Guarantee and Collateral Agreement
  to the contrary, (i) the liens and security interests granted to the Agent
  pursuant to the Guarantee and Collateral Agreement (as modified by this
  Agreement) are, in accordance with the Intercreditor Agreement, expressly
  subject and subordinate to the liens and security interests granted to (a)
  Bank of America, N.A., as agent (and its permitted successors), pursuant to
  the Guarantee and Collateral Agreement dated as of October 1, 2010 (as
  amended, restated, supplemented or otherwise modified from time to time), by
  and among Parent, Holdings, the other Borrower party to the Revolving Credit
  Facility on the date thereof and Bank of America, N.A., as agent for the
  “Secured Parties” thereunder, or (b) any agent or trustee for any other First
  Lien Claimholders (as defined in the Intercreditor Agreement), and (ii) the
  exercise of any right or remedy by the Agent hereunder or under the Guarantee
  and Collateral Agreement is subject to the limitations and provisions of the
  Intercreditor Agreement. In the event of any conflict between the terms of
  the Intercreditor Agreement and the terms of the Guarantee and Collateral
  confidential confidential 

  






 















	
  

  	
  #85923267v18
  Agreement (as modified by this Agreement), the terms of the Intercreditor
  Agreement shall govern. [SIGNATURE PAGES FOLLOW] confidential confidential 

  






 















	
  

  	
  [Signature Page
  to Joinder and Supplement to Security Agreement] #85923267v18 IN WITNESS
  WHEREOF, the parties hereto have executed this Agreement as of the Effective
  Date. [NEW AGENT], By: ________________________________ Name: Title: CREDIT
  SUISSE AG, Cayman Islands Branch, as Agent By: ________________________________
  Name: Title: By: ________________________________ Name: Title: confidential
  confidential 

  






 















	
  

  	
  #85923267v18
  NEFF RENTAL LLC, By: _____________________________________ Name: Title: NEFF
  HOLDINGS LLC By: _____________________________________ Name: Title: NEFF LLC
  By: _____________________________________ Name: Title: confidential
  confidential 

  






 















	
  

  	
  #85923267v18
  EXHIBIT E FORM OF JOINDER AGREEMENT JOINDER AGREEMENT (this “Agreement”)
  dated as of ________, 20__ is by and among ___________, a ________ [corporation]
  [limited liability company] (the “Additional Grantor”) and CREDIT SUISSE AG,
  in its capacity as Agent for the Secured Parties under the Guarantee and
  Collateral Agreement. Capitalized terms used herein and not otherwise defined
  herein shall have the meanings ascribed to such terms in the Guarantee and
  Collateral Agreement. Pursuant to that certain Guarantee and Collateral
  Agreement, dated as of June 9, 2014 (as the same may be amended,
  supplemented, restated or otherwise modified from time to time, the
  “Guarantee and Collateral Agreement”), among NEFF RENTAL LLC, a Delaware
  limited liability company (the “Borrower”), NEFF HOLDINGS LLC, a Delaware
  limited liability company (“Holdings”), NEFF LLC, a Delaware limited
  liability company (the “Parent,” and together with Holdings, the
  “Guarantors”), and each other Person which becomes party hereto as Grantor
  pursuant to Section 23 of the Guarantee and Collateral Agreement (such
  Persons, together with the Borrower, Holdings and Parent, collectively, the
  “Grantors” and each, a “Grantor”), and CREDIT SUISSE AG, in its capacity as
  administrative agent and collateral agent for the Secured Parties (in such
  capacities, together with its successors and assigns in such capacities, if
  any, the “Agent”), the Grantors are required by Section 23 of the Guarantee
  and Collateral Agreement to cause the Additional Grantor to become a Grantor
  thereunder. Accordingly, the Additional Grantor hereby agrees as follows with
  the Agent, for the benefit of the Secured Parties, that: 1. The Additional
  Grantor hereby acknowledges, agrees and confirms that, by its execution of
  this Agreement, the Additional Grantor will be deemed to be a party to the
  Guarantee and Collateral Agreement and the Intercreditor Agreement and a
  Grantor (as defined in the Guarantee and Collateral Agreement) for all
  purposes of the Guarantee and Collateral Agreement and the other Secured
  Documents, and shall have all the obligations of a Grantor thereunder as if
  it had executed the Guarantee and Collateral Agreement. The Additional
  Grantor hereby ratifies, as of the date hereof, and agrees to be bound by,
  all of the terms, provisions and conditions contained in the Guarantee and
  Collateral Agreement. Without limiting generality of the foregoing terms of
  this paragraph 1, the Additional Grantor 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 Guarantee
  and Collateral Agreement) of such Additional Grantor, whether owned or
  consigned by or to, or leased from or to, such Additional Grantor, 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 Secured Obligations. 2. The Additional Grantor hereby
  acknowledges, agrees and confirms that, by its execution of this Agreement,
  the Additional Grantor 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 shall have all the
  obligations of a Pledgor thereunder as if it had executed the Pledge Agreement.
  The Additional Grantor hereby ratifies, as of the confidential confidential 

  






 















	
  

  	
  #85923267v18
  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 2, the Additional Grantor hereby grants
  and pledges to Agent, for itself and the benefit of the Secured Parties, a
  security interest in the Pledged Collateral (as defined in the Pledge
  Agreement) of the Additional Grantor identified on Schedule 1 hereto and all
  other Pledged Collateral of the Additional Grantor to secure the prompt
  payment and performance in full when due, whether by lapse of time,
  acceleration, mandatory prepayment or otherwise, of the Secured Obligations. 4.
  The Additional Grantor hereby represents and warrants to the Agent that: (a)
  As of the date hereof the attached Schedules set forth the information
  required by the Perfection Certificate with respect to the Additional
  Grantor. (b) Schedule [.] hereto includes all warehouses, consignees and
  processors with whom Inventory is stored or located and other premises where
  Collateral is stored or located. 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 LAWS OF THE STATE OF NEW YORK. confidential
  confidential 

  






 


 












	
  

  	
  #85923267v18 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.
  [ADDITIONAL GRANTOR] By: ____________________ Name: Title: Acknowledged and
  accepted as of the date first written above: CREDIT SUISSE AG, Cayman Islands
  Branch, as Agent for the benefit of itself and the other Secured Parties By:
  _________________________ Name: Title: By: _________________________ Name:
  Title: confidential confidential 

  






 















	
  

  	
  EXHIBIT D-2
  #85941052v7 EXHIBIT D-2 FORM OF PLEDGE AGREEMENT [See attached] confidential
  confidential 

  






 















	
  

  	
  #85923246v7
  EXECUTION VERSION PLEDGE AGREEMENT This PLEDGE AGREEMENT, dated as of June 9,
  2014 (as the same may be amended, supplemented, restated or otherwise
  modified from time to time, this “Agreement”) between NEFF HOLDINGS LLC, a
  Delaware limited liability company (“Holdings”) and NEFF LLC, a Delaware
  limited liability company (“Parent”) and each other Person which becomes
  party hereto as Pledgor (such Persons, together with Holdings and Parent
  collectively, the “Pledgors” and each, a “Pledgor”), and CREDIT SUISSE AG in
  its capacity as collateral agent for Secured Parties (in such capacity, the
  “Agent”). W I T N E S S E T H: WHEREAS, Holdings, Parent, Neff Rental LLC
  (the “Borrower”), Credit Suisse AG, as collateral agent and administrative
  agent, and the lenders party thereto have entered into the Second Lien Credit
  Agreement, dated as of the date hereof (as from time to time amended,
  restated, supplemented or otherwise modified, the “Credit Agreement”);
  WHEREAS, Holdings, Parent, Borrower, each of the other Persons named therein
  as Grantors and Credit Suisse AG, as collateral agent and administrative
  agent, have entered into the Guarantee and Collateral Agreement, dated as of
  the date hereof (as from time to time amended, restated, supplemented or
  otherwise modified, the “Security Agreement”; capitalized terms used herein
  and not otherwise defined herein shall have the meanings ascribed to such
  terms in the Security Agreement); WHEREAS, it is a condition under the Credit
  Agreement that each Pledgor shall have executed and delivered this Agreement
  to the Agent for the ratable benefit of Secured Parties; WHEREAS, each
  Pledgor is the record and beneficial owner of the shares of Capital Stock
  listed in Part A of Schedule I hereto and the owner of the promissory notes
  and Instruments listed in Part B of Schedule I hereto; WHEREAS, each Pledgor
  benefits from the borrowing of the Loans under the Credit Agreement; WHEREAS,
  in order to induce the Lenders to make the Loans, each Pledgor has agreed to
  pledge the Pledged Collateral to the Agent in accordance herewith; and NOW,
  THEREFORE, in consideration of the premises and the covenants hereinafter
  contained, each Pledgor hereby agrees with the Agent, for the benefit of
  Secured Parties, as follows: confidential confidential 

  






 















	
  

  	
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  Section 1. Definitions. Unless otherwise defined herein, terms defined in the
  Security Agreement are used herein as therein defined, and the following
  shall have (unless otherwise provided elsewhere in this Agreement) the
  following respective meanings (such meanings being equally applicable to both
  the singular and plural form of the terms defined): “Capital Stock” of any
  Person means any and all shares of, rights to purchase, warrants or options
  for, or other equivalents of or interests (including limited liability
  company interests) in (however designated) equity of such Person, including
  any Preferred Stock, but excluding any debt securities convertible into such
  equity. “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. “Person” means any individual,
  corporation, partnership, joint venture, association, joint-stock company,
  limited liability company, trust, unincorporated organization, government or
  any agency or political subdivision thereof or any other entity. “Pledged
  Collateral” has the meaning specified in Section 2. “Pledged Entity” means an
  issuer of Pledged Shares or any Wholly Owned Subsidiary of Holdings but
  excluding each Unrestricted Subsidiary unless the Revolving Credit Facility
  is secured by a Lien on the equity interests in such Unrestricted Subsidiary.
  “Pledged Indebtedness” means the Indebtedness (as defined in the Credit
  Agreement) listed on Part B of Schedule I hereto. “Pledged Shares” means the Capital
  Stock listed on Part A of Schedule I hereto. “Preferred Stock” as applied to
  the Capital Stock of any corporation means Capital Stock of any class or
  classes (however designated) that by its terms is preferred as to the payment
  of dividends, or as to the distribution of assets upon any voluntary or
  involuntary liquidation or dissolution of such corporation, over shares of
  Capital Stock of any other class of such corporation. “Subsidiary” of any
  Person means any corporation, association, partnership or other business
  entity of which more than 50% of the total voting power of shares of Capital
  Stock or other equity interests (including partnership interests) entitled
  (without regard to the occurrence of any contingency) to vote in the election
  of directors, managers or trustees thereof is at the time owned or
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  3 #85923246v7
  controlled, directly or indirectly, by (i) such Person or (ii) one or more
  Subsidiaries of such Person. “Wholly-Owned Subsidiary” of any Person means a
  Subsidiary, all of the Capital Stock or other equity interests of which is
  owned by such Person or one or more other Wholly-Owned Subsidiaries of such
  Person. Section 2. Pledge. Each Pledgor hereby pledges to Agent for itself
  and the benefit of Secured Parties, and grants to Agent for the benefit of
  Secured Parties, a security interest in all of the following (collectively,
  the “Pledged Collateral”): (a) the Pledged Shares and the certificates
  representing the Pledged Shares, and all dividends, distributions, cash,
  Instruments and other property or proceeds from time to time received,
  receivable or otherwise distributed in respect of or in exchange for any or
  all of the Pledged Shares; (b) any additional Capital Stock of a Pledged
  Entity from time to time acquired by each Pledgor in any manner (which shares
  shall be deemed to be part of the Pledged Shares), and the certificates
  representing such additional Capital Stock, and all dividends, distributions,
  cash, Instruments and other property or proceeds from time to time received,
  receivable or otherwise distributed in respect of or in exchange for any or
  all of such Capital Stock; (c) the Pledged Indebtedness and the promissory
  notes or Instruments evidencing the Pledged Indebtedness, and all interest,
  cash, Instruments and other property and assets from time to time received,
  receivable or otherwise distributed in respect of the Pledged Indebtedness;
  and (d) all additional Indebtedness arising after the date hereof and owing
  to each Pledgor, together with any promissory notes and Instruments
  evidencing such Indebtedness, and all interest, cash, Instruments and other
  property and assets from time to time received, receivable or otherwise
  distributed in respect of that Pledged Indebtedness; provided that Pledged Collateral
  shall not include any Excluded Property. Section 3. Security for Obligations.
  This Agreement secures, and the Pledged Collateral is security for, the
  prompt payment in full when due, whether at stated maturity, by acceleration
  or otherwise of all Secured Obligations (including, for the avoidance of
  doubt, all Additional Secured Obligations). Section 4. Delivery of Pledged
  Collateral. All certificates and all promissory notes and Instruments
  evidencing the Pledged Collateral shall be delivered to and held by or on
  behalf of the Perfection Agent, for itself and the benefit of Secured
  Parties, pursuant hereto. All Pledged Shares shall be accompanied by duly
  executed stock powers or other instruments of transfer or confidential
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  4 #85923246v7
  assignment in blank and all promissory notes or other Instruments evidencing
  the Pledged Indebtedness shall be endorsed by the applicable Pledgor or
  accompanied by a duly executed instrument of transfer or assignment in blank.
  Section 5. Representations and Warranties. Each Pledgor represents and
  warrants to Agent that as of the date hereof: (a) Each Pledgor is, and at the
  time of delivery of the Pledged Shares to the Perfection Agent will be, the
  sole holder of record and the beneficial owner of such Pledged Shares pledged
  by such Pledgor free and clear of any Lien thereon or affecting the title
  thereto, except for any Lien created by this Agreement or the Security
  Agreement and Permitted Liens (as defined in the Credit Agreement); each
  Pledgor is and at the time of delivery of the Pledged Indebtedness to the
  Perfection Agent will be, the sole owner of such Pledged Collateral free and
  clear of any Lien thereon or affecting title thereto, except for (i) any Lien
  created by this Agreement, (ii) the Security Agreement and (iii) the other
  Permitted Liens; (b) All of the Pledged Shares have been duly authorized,
  validly issued and are fully paid and non-assessable (except to the extent
  set forth in the organizational documents of the applicable Pledged Entity);
  (c) None of the Pledged Shares or Pledged Indebtedness has been issued or
  transferred in violation of the securities registration, securities
  disclosure or similar laws of any jurisdiction to which such issuance or
  transfer may be subject; (d) All of the Pledged Shares are presently owned by
  each Pledgor, and are presently represented by the certificates listed on
  Part A of Schedule I hereto and constitute all of the issued and outstanding
  shares of all classes of stock owned by the relevant Pledgor. As of the date
  hereof, there are no existing options, warrants, calls or commitments of any
  character whatsoever relating to the Pledged Shares (except to the extent set
  forth in the organizational documents of the applicable Pledged Entity); (e)
  No consent, approval, authorization or other order or other action by, and no
  notice to or filing with, any Governmental Authority or any other Person,
  that has not been made or obtained, is required (i) for the pledge by any
  Pledgor of the Pledged Collateral pursuant to this Agreement or for the
  execution, delivery or performance of this Agreement by any Pledgor, or (ii)
  for the exercise by Agent of the voting or other rights provided for in this
  Agreement or the remedies in respect of the Pledged Collateral pursuant to
  this Agreement, except as may be required in connection with such disposition
  by laws affecting the offering and sale of securities generally and except as
  set forth in the Intercreditor Agreement; (f) The Pledged Shares constitute
  100% of the issued and outstanding shares of Capital Stock of each Pledged
  Entity that is a Domestic Subsidiary (as defined in the Credit Agreement) of
  a Pledgor; and confidential confidential 

  






 















	
  

  	
  5 #85923246v7
  The representations and warranties set forth in this Section 5 shall survive
  the execution and delivery of this Agreement. Section 6. Covenants. Each
  Pledgor covenants and agrees that until (a) the Discharge of Secured
  Obligations or (b) as to any Pledgor, the date upon which all Pledged Shares
  owned by such Pledgor shall have been sold or otherwise disposed of in
  accordance with each Secured Document: (a) Without the prior written consent
  of Agent, such Pledgor will not (i) sell, assign, transfer, pledge the
  Pledged Collateral (except pursuant to a transaction permitted by the Secured
  Documents) or (ii) otherwise encumber any of its rights in or to the Pledged
  Collateral (except for Liens permitted under the Secured Documents), or any
  unpaid dividends, interest or other distributions or payments with respect to
  the Pledged Collateral or grant a Lien in the Pledged Collateral, unless
  otherwise expressly permitted by the Secured Documents; (b) Upon the written
  request of Agent, each Pledgor will, at its expense, promptly execute and
  deliver all such further instruments and take all such further actions as
  Agent from time to time may reasonably request in order to ensure to Agent
  and Secured Parties the security interests to the Pledged Collateral granted
  hereby are perfected, including the filing of any necessary Code financing
  statements, which may be filed by Agent with or (to the extent permitted by
  law) without the signature of each Pledgor; and (c) Each Pledgor will, upon
  obtaining ownership of any additional Capital Stock or promissory notes or
  Instruments of a Pledged Entity or any Capital Stock or promissory notes or
  Instruments otherwise required to be pledged to Agent pursuant to any of the
  Secured Documents, which Capital Stock, notes or Instruments are not already
  Pledged Collateral on the date hereof, promptly deliver to Agent a pledge
  amendment, duly executed by such Pledgor, in substantially the form of
  Schedule II hereto (a “Pledge Amendment”) in respect of any such additional
  Capital Stock, notes or Instruments, pursuant to which such Pledgor shall
  pledge to Agent all of such additional Capital Stock, notes and Instruments.
  Each Pledgor hereby authorizes Agent to attach each Pledge Amendment to this
  Agreement and agrees that all Pledged Shares and Pledged Indebtedness listed
  on any Pledge Amendment delivered to the Perfection Agent shall for all
  purposes hereunder be considered Pledged Collateral (however such Pledged
  Shares and Pledged Indebtedness shall constitute Pledged Collateral even if
  no Pledge Amendment is delivered). (d) In the case of each Pledgor which is
  an issuer of Pledged Collateral, such Pledgor agrees that after and during
  the continuance of an Event of Default it will comply with instructions of
  the Agent with respect to the Capital Stock of such issuer without further
  consent by the applicable Pledgor. Section 7. Pledgor’s Rights. As long as no
  Event of Default shall have occurred and be continuing and until written
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  6 #85923246v7
  relevant Pledgor(s) of its intent to exercise its corresponding rights in
  accordance with Section 8(a) hereof: (a) (i) Each Pledgor shall be entitled
  to vote, give consents and have all other consensual rights with respect to
  the Pledged Collateral, or any part thereof for all purposes not inconsistent
  with the provisions of this Agreement, the Credit Agreement or any other
  Secured Document; (ii) Agent shall execute and deliver (or cause to be
  executed and delivered) to the relevant Pledgor all such proxies and other
  instruments as such Pledgor may reasonably request for the purpose of
  enabling such Pledgor to exercise the voting and other rights that it is
  entitled to exercise pursuant to clause (i) above; and (b) (i) As long as no
  Event of Default shall have occurred and be continuing, each Pledgor shall be
  entitled, from time to time, to collect, receive and retain for its own use,
  free and clear of the Lien created by this Agreement, any and all cash
  dividends, distributions, principal and interest paid in respect of the
  Pledged Shares or Pledged Indebtedness to the extent permitted by the Secured
  Documents; and (ii) upon the occurrence and during the continuance of an
  Event of Default, all dividends and interest and all other distributions in
  respect of any of the Pledged Shares or Pledged Indebtedness, whenever paid
  or made, shall be delivered to Perfection Agent to hold as Pledged Collateral
  and shall, if received by any Pledgor, be received in trust for the benefit
  of Agent, be segregated from the other property or funds of such Pledgor, and
  be forthwith delivered to Agent as Pledged Collateral in the same form as so
  received (with any necessary indorsement). Section 8. Defaults And Remedies;
  Proxy. (a) Upon the occurrence of an Event of Default and during the
  continuation of such Event of Default, and concurrently with written notice
  by Agent to each Pledgor, Agent (personally or through an agent or designee)
  is hereby authorized and empowered (1) to transfer and register in its name
  or in the name of its nominee the whole or any part of the Pledged
  Collateral, (2) to exchange certificates or Instruments representing or
  evidencing Pledged Collateral for certificates or Instruments of smaller or
  larger denominations, (3) to exercise the voting and all other rights as a
  holder with respect thereto, (4) to collect and receive all cash dividends,
  interest, principal and other distributions made thereon and (5) to sell in
  one or more sales after ten (10) days’ notice to each Pledgor of the time and
  place of any public sale or of the time at which a private sale is to take
  place (which notice each Pledgor agrees is commercially reasonable) the whole
  or any part of the Pledged Collateral and to otherwise act with respect to
  the Pledged Collateral as though Agent was the outright owner thereof. Any
  sale shall be made at a public or private sale at Agent’s place of
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  7 #85923246v7
  business, or at any place to be named in the notice of sale, either for cash
  or upon credit or for future delivery at such price or prices and upon such
  other terms as are commercially reasonable irrespective of the impact of any
  such sales on the market price of the Pledged Collateral. Agent or any other
  Secured Party may be the purchaser of the whole or any part of the Pledged
  Collateral so sold, to the extent permitted by law, and hold the same
  thereafter in its own right free from any claim of any Pledgor or any right
  of redemption, and Agent or such Secured Party may pay the purchase price by
  crediting the amount thereof against the Secured Obligations. Each sale shall
  be made to the highest bidder, but Agent reserves the right to reject any and
  all bids at such sale which, in its discretion, it shall deem inadequate.
  EACH PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE PROXY
  AND ATTORNEY-IN-FACT OF SUCH PLEDGOR WITH RESPECT TO THE PLEDGED COLLATERAL.
  THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN
  INTEREST. THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL
  INCLUDE THE RIGHT TO VOTE THE PLEDGED SHARES AS PROVIDED HEREIN, WITH FULL
  POWER OF SUBSTITUTION TO DO SO AND THE RIGHT TO EXERCISE ALL OTHER RIGHTS,
  POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD
  BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS,
  CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH
  PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY
  ACTION (INCLUDING ANY TRANSFER OF ANY PLEDGED SHARES ON THE RECORD BOOKS OF
  THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF THE PLEDGED SHARES
  OR ANY OFFICER OR AGENT THEREOF), UPON THE OCCURRENCE AND DURING THE
  CONTINUANCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING THE FOREGOING, AGENT
  SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT OR TO PRESERVE THE SAME
  AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING
  SO. (b) If, at the original time or times appointed for the sale of the whole
  or any part of the Pledged Collateral, the highest bid, if there be but one
  sale, shall be inadequate to discharge in full all the Secured Obligations
  (other than unasserted contingent indemnification obligations), or if the
  Pledged Collateral be offered for sale in lots, if at any of such sales, the
  highest bid for the lot offered for sale would indicate to Agent, in its
  discretion, that the proceeds of the sales of the whole of the Pledged
  Collateral would be unlikely to be sufficient to discharge all the Secured
  Obligations (other than unasserted contingent indemnification obligations), Agent
  may, on one or more occasions and in its discretion, postpone any of said
  sales by public announcement at the time of sale or after the time of
  previous postponement of sale, and no other notice of such postponement or
  postponements of sale need be given, any other notice being hereby waived;
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  8 #85923246v7
  provided, however, that any sale or sales made after such postponement shall
  be after ten (10) days’ notice to the Pledgors. (c) Agent shall apply the
  proceeds of any collection or sale of the Pledged Collateral at any time
  after receipt as provided in Section 10 of the Security Agreement. (d) Each
  Pledgor agrees to the maximum extent permitted by applicable law that
  following the occurrence and during the continuance of an Event of Default it
  will not at any time plead, claim or take the benefit of any appraisal,
  valuation, stay, extension, moratorium or redemption law now or hereafter in
  force in order to prevent or delay the enforcement of this Agreement, or the
  absolute sale of the whole or any part of the Pledged Collateral or the
  possession thereof by any purchaser at any sale hereunder, and each Pledgor
  waives the benefit of all such laws to the extent it lawfully may do so. Each
  Pledgor agrees that it will not interfere with any right, power and remedy of
  Agent provided for in this Agreement or now or hereafter existing at law or
  in equity or by statute or otherwise, or the exercise or beginning of the
  exercise by Agent of any one or more of such rights, powers or remedies. No
  failure or delay on the part of Agent to exercise any such right, power or
  remedy and no notice or demand which may be given to or made upon each
  Pledgor by Agent with respect to any such remedies shall operate as a waiver
  thereof, or limit or impair Agent’s right to take any action or to exercise
  any power or remedy hereunder, without notice or demand, or prejudice its
  rights as against any Pledgor in any respect. Section 9. Intentionally
  Omitted. Section 10. Termination; Release. Immediately following the
  Discharge of Secured Obligations or any sale of any Pledged Collateral to a
  third party other than a Loan Party in accordance with the Secured Documents,
  the applicable Pledged Collateral shall be released and Agent shall promptly
  deliver to each Pledgor such Pledged Collateral pledged by each Pledgor at
  the time subject to this Agreement and all instruments of assignment executed
  in connection therewith, free and clear of the Liens hereof and, except as
  otherwise provided herein, all of each Pledgor’s obligations hereunder with
  respect to any such sold Pledged Collateral or, following the Discharge of
  Secured Obligations, all Pledged Collateral shall at such time terminate. Any
  release or return of Pledged Collateral or execution and delivery of any
  other document pursuant to this Section 10 shall be without recourse to or
  warranty by Agent. Section 11. Lien Absolute. All rights of Agent hereunder,
  and all obligations of each Pledgor hereunder, shall be absolute and
  unconditional irrespective of: (a) any lack of validity or enforceability of
  the Credit Agreement, any other Secured Document or any other agreement or
  Instrument governing or evidencing any Secured Obligations; confidential
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  9 #85923246v7
  (b) any change in the time, manner or place of payment of, or in any other
  term of, all or any part of the Secured Obligations, or any other amendment
  or waiver of or any consent to any departure from the Credit Agreement, any
  other Secured Document or any other agreement or Instrument governing or
  evidencing any Secured Obligations; (c) any exchange, release or non
  perfection of any other Collateral, or any release or amendment or waiver of
  or consent to departure from any guaranty, for all or any of the Secured
  Obligations; (d) the insolvency of any Loan Party; or (e) any other
  circumstance which might otherwise constitute a defense available to, or a
  discharge of, any Pledgor. Section 12. Reinstatement. This Agreement shall
  remain in full force and effect and continue to be effective should any
  petition be filed by or against any Pledgor or any Pledged Entity for
  liquidation or reorganization, should each Pledgor or any Pledged Entity
  become insolvent or make an assignment for the benefit of creditors or should
  a receiver or trustee be appointed for all or any significant part of any
  Pledgor’s or any Pledged Entity’s assets, and shall continue to be effective
  or be reinstated, as the case may be, if at any time payment and performance
  of the Secured Obligations, or any part thereof, is, pursuant to applicable
  law, rescinded or reduced in amount, or must otherwise be restored or
  returned by any obligee of the Secured Obligations, whether as a “voidable
  preference”, “fraudulent conveyance”, or otherwise, all as though such
  payment or performance had not been made. In the event that any payment, or
  any part thereof, is rescinded, reduced, restored or returned, the Secured
  Obligations shall be reinstated and deemed reduced only by such amount paid
  and not so rescinded, reduced, restored or returned. Section 13.
  Miscellaneous. (a) The Agent may execute any of its duties hereunder by or
  through agents or employees and shall be entitled to advice of counsel
  concerning all matters pertaining to its duties hereunder and shall have no
  liability for any action taken in good faith in accordance with such advice.
  Without limiting the foregoing, in performing all of its duties or
  obligations hereunder, the Agent shall be entitled to the same rights,
  indemnities, protections and immunities as it is entitled to under the
  Security Agreement or as the Administrative Agent is entitled to under the
  Credit Agreement, including, without limitation, Articles 8 and 9 thereof,
  all of which are hereby incorporated by reference as if fully set forth
  herein but with applicable changes to refer to the Agent. (b) Each Pledgor
  agrees to promptly (and in any event no less than on a monthly basis, ten
  (10) Business Days after submission of invoices documenting out-of-pocket
  expenses) pay all reasonable and documented out-of-pocket confidential
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  10 #85923246v7
  expenses incurred by the Agent in connection with any matters contemplated by
  or arising out of this Agreement. (c) Neither Agent, nor any of its
  respective officers, directors, employees, agents or counsel shall be liable
  for any action lawfully taken or omitted to be taken by it or them hereunder
  or in connection herewith, except for its or their own gross negligence,
  willful misconduct or bad faith as finally determined by a court of competent
  jurisdiction. (d) THIS AGREEMENT SHALL BE BINDING UPON EACH PLEDGOR AND ITS
  SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF EACH
  PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY, AGENT AND
  ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND CONSTRUED AND
  ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
  CONTRACTS MADE AND PERFORMED IN THAT STATE, AND, SUBJECT TO THE TERMS OF THE
  SECURITY AGREEMENT, NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE
  WAIVED, ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON
  BEHALF OF AGENT AND EACH PLEDGOR. Section 14. Severability. If for any reason
  any provision or provisions hereof are determined to be invalid and contrary
  to any existing or future law in any jurisdiction, as to such jurisdiction,
  such invalidity shall not impair the operation of or effect those portions of
  this Agreement which are valid, and such invalidity shall not invalidate or
  render unenforceable such provision in any other jurisdiction. The parties
  hereto shall endeavor in good-faith negotiations to replace the invalid,
  illegal or unenforceable provisions with valid provisions the economic effect
  of which comes as close as possible to that of the invalid, illegal or
  unenforceable provisions. Section 15. Notices. Except as otherwise provided
  herein, whenever it is provided herein that any notice, demand, request,
  consent, approval, declaration or other communication shall or may be given
  to or served upon any of the parties by any other party, or whenever any of
  the parties desires to give and serve upon any other party any communication
  with respect to this Agreement, each such notice, demand, request, consent,
  approval, declaration or other communication shall be in writing and shall be
  given in the manner, and deemed received, as provided for in Section 18 of
  the Security Agreement. Section 16. Section Titles. The Section titles
  contained in this Agreement are and shall be without substantive meaning or
  content of any kind whatsoever and are not a part of the agreement between
  the parties hereto. confidential confidential 

  






 















	
  

  	
  11 #85923246v7
  Section 17. Counterparts. This Agreement may be executed in any number of
  counterparts (including by facsimile or other electronic transmission), which
  shall, collectively and separately, constitute one agreement. Section 18.
  Authorization. Each Pledgor hereby irrevocably authorizes the Agent at any
  time and from time to time to file in any filing office in any Uniform Commercial
  Code jurisdiction any initial financing statements and amendments thereto
  that contain information required by part 5 of Article 9 of the Code for the
  sufficiency or filing office acceptance of any financing statement or
  amendment. Each Pledgor also ratifies its authorization for the Agent to have
  filed in any Uniform Commercial Code jurisdiction any initial financing
  statements or amendments thereto if filed prior to the date hereof. Section
  19. Additional Pledgors. If, pursuant to the Secured Documents, Parent shall
  be required to cause any Subsidiary that is not a Pledgor to become a Pledgor
  hereunder, such Subsidiary shall execute and deliver to Agent a Joinder
  Agreement substantially in the form of Exhibit E to the Security Agreement
  and shall thereafter for all purposes be a party hereto and have the same
  rights, benefits and obligations as a Pledgor party hereto on the Issue Date.
  Section 20. Subject to the Intercreditor Agreement. Notwithstanding anything
  herein to the contrary, the lien and security interest granted to Agent
  pursuant to this Agreement and the exercise of any right or remedy by Agent
  hereunder are subject to the provisions of the Intercreditor Agreement, dated
  as of June 9, 2014 as the same may be amended, supplemented, modified or
  replaced from time to time (the “Intercreditor Agreement”) among Bank of
  America, N.A., as First Lien Agent, Credit Suisse, AG, as Second Lien
  Collateral Agent, Bank of America, N.A., as Control Agent and the Grantors
  from time to time a party thereto. In the event of any conflict between the
  terms of the Intercreditor Agreement and this Agreement, the terms of the
  Intercreditor Agreement shall govern. Compliance by any Pledgor with any term
  of the Intercreditor Agreement shall not result in any breach or other
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  EXHIBIT E
  #85941052v7 EXHIBIT E COMPLIANCE CERTIFICATE NEFF LLC ***Attachments 2
  (Consolidated EBITDA), 3 (Excess Cash Flow) and 4 (Available Amount) are
  PRIVATE ONLY*** Date: ________, _______. This Compliance and Pricing
  Certificate (this “Certificate”) is given by NEFF HOLDINGS LLC (“Holdings”)
  pursuant to Section 5.04(d) of that certain Second Lien Credit Agreement,
  dated as of June 9, 2014, among Neff Rental LLC, as Borrower, Neff LLC,
  Holdings, the Lenders from time to time party thereto and Credit Suisse AG,
  as administrative agent for the Lenders (the “Administrative Agent”) 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 the Loan
  Parties. By executing this Certificate such officer hereby certifies to
  Administrative Agent and Lenders that: a) I am the duly elected Chief
  Financial Officer of Holdings. b) the financial statements required to be
  delivered with this Certificate pursuant to Section [5.04(a) or 5.04(b)] of
  the Credit Agreement are attached as Attachment 1 hereto [and fairly present
  in all material respects the results of operations and financial condition of
  Holdings and its consolidated subsidiaries on a consolidated basis in
  accordance with GAAP consistently applied (except that quarterly financial
  statements do not include footnote disclosures or any consolidating statement
  and are subject to year-end adjustment)]19; c) [no Event of Default or, to my
  knowledge, no Default has occurred] [if an Event of Default or Default has
  occurred, specifying the nature and extent thereof and any corrective action
  taken or proposed to be taken with respect thereto]; 19 At Borrower’s option,
  to be included with a Certificate delivered with financial statements
  required by Section 5.04(b). confidential confidential 

  






 















	
  

  	
  EXHIBIT E 15
  #85941052v7 d) [(1) attached as Attachment 2 hereto is the calculation of
  Consolidated EBITDA; (2) attached as Attachment 3 hereto is the calculation
  of Excess Cash Flow] 20 and (3) attached as Attachment 4 hereto is the
  calculation of the Available Amount; and the application of amounts thereof,
  if any, during the period covered by the financial statements delivered with
  this Certificate; e) [attached as Attachment 5 hereto is a Perfection
  Certificate Supplement] [there have been no changes to the information
  provided in the Perfection Certificate dated as of [ ]].21 IN WITNESS
  WHEREOF, Holdings has caused this Certificate to be executed by____________________
  this ____ day of _______, _____. NEFF HOLDINGS LLC By: Name: Title: 20 To be
  included with a Certificate delivered with financial statements required by
  Section 5.04(a). 21 To be included with a Certificate delivered with
  financial statements required by Section 5.04(a). confidential confidential 

  






 















	
  

  	
  EXHIBIT E 16
  #85941052v7 Attachment 1 [Financial statements, including “management
  discussion and analysis, attached] confidential confidential 

  






 















	
  

  	
  EXHIBIT E 17
  #85941052v7 Attachment 2 The information described herein is as of ______,
  20__, and pertains to the period from _________, 20__ to ________ , 20__
  (such ending date the “Statement Date” and such period the “Subject Period”).
  Consolidated EBITDA for Subject Period: Consolidated Net Income for Subject
  Period: $______ a. Plus (without duplication), to the extent deducted in
  determining Consolidated Net Income: i Consolidated Interest Expense for
  Subject Period: $______ ii any provision for taxes based on income, capital
  or profits, including state, franchise and similar taxes and foreign
  withholding taxes paid or accrued during Subject Period (including Permitted
  Tax Distributions): $______ iii depreciation for Subject Period: $______ iv
  amortization expense for Subject Period: $______ v (A) reasonable and
  customary fees and expenses in connection with the Transactions and the 2013
  Notes Transactions (as defined in the Revolving Credit Facility) including
  any payment of fees under the Fee Letters (as defined in the Revolving Credit
  Facility) and any consent payments paid in connection with the Consent
  Solicitation (as defined in the Revolving Credit Facility) for Subject
  Period: $______ (B) incentive bonuses and other compensation, if any, paid or
  payable to employees and/or to members of the board of managers (or
  equivalent) in connection with the consummation of the Transactions for
  Subject Period $______ vi all other non-cash charges for Subject Period
  (including the amount of (A) compensation deduction as the result of any
  grant of Equity Interests to employees, officers, directors, managers or
  members of management and (B) asset writedowns but excluding the write-down
  of any accounts receivable): $______ confidential confidential 

  






 















	
  

  	
  EXHIBIT E 18
  #85941052v7 vii losses, expenses or charges arising from discontinued
  operations and/or the sale of capital assets for Subject Period (excluding
  losses from the sale of Rental Fleet and Equipment and other Inventory in the
  Ordinary Course of Business): $______ viii any extraordinary and non-recurring
  expenses or losses for Subject Period: $______ ix subject to Section 1.03 of
  the Credit Agreement, restructuring expenses or charges, operating expense
  reductions, cost savings and synergies (collectively, “Cost Savings”)
  projected by the Borrower in good faith to be realized in connection with any
  Pro Forma Transactions and/or other initiatives after the Closing Date (in
  each case as though such Cost Savings had been realized on the first day of
  Subject Period and as if such Cost Savings were realized during the entirety
  of Subject Period), net of the amount of actual benefits realized during
  Subject Period from such actions; provided that (A) with respect to Cost
  Savings, a duly completed certificate signed by a Financial Officer of the
  Borrower shall be delivered to the Administrative Agent together with the
  Compliance Certificate required to be delivered pursuant to Section 5.04 of
  the Credit Agreement, certifying that such Cost Savings are (x) reasonably
  supportable and quantifiable in the good faith judgment of the Borrower, and
  (y) reasonably anticipated to be realized within one year after the
  consummation of the transaction or initiative that is expected to result in
  such Cost Savings and (B) no Cost Savings shall be added pursuant to this clause
  (ix) to the extent duplicative of any expenses or charges otherwise added to
  Consolidated EBITDA, whether through a pro forma adjustment or otherwise;
  provided, further that the aggregate amount added back pursuant to this
  clause (ix) shall not exceed 15.0% of Consolidated EBITDA with respect to
  such period (prior to giving effect to the addback pursuant to this clause
  (ix)): $______ x expenses and charges incurred in connection with the
  consummation of Permitted Acquisitions, the issuance of Qualified Capital
  Stock or the incurrence of, or amendments to, Indebtedness during Subject
  Period (in each case, whether or not the applicable Permitted Acquisition,
  issuance of Qualified Capital Stock or $______ confidential confidential 

  






 















	
  

  	
  EXHIBIT E 19
  #85941052v7 incurrence of, or amendments to, Indebtedness is consummated): xi
  expenses attributable to minority interests (excluding dividends and other
  distributions paid or payable in cash to the holders of such minority
  interests): $______ xii expenses in connection with rental splits: $______
  xiii expenses and charges in connection with impairment of goodwill and other
  intangible assets: $______ xiv out-of-pocket expenses incurred by Permitted
  Investors (or any of their principals, employees, agents or other representatives)
  in connection with its performance of management, consulting, monitoring,
  financial advisory or other services provided to Holdings and its
  Subsidiaries: $______ b. Minus (without duplication to the extent including
  in calculating Consolidated Net Income) i gains arising from discontinued
  operations and/or the sale of capital assets for such period (excluding gains
  from the sale of Rental Fleet and Equipment and other Inventory in the
  Ordinary Course of Business) and all other non-cash gains for Subject Period:
  $______ ii all cash payments made during such period on account of reserves,
  restructuring charges and other non-cash charges added to Consolidated Net
  Income pursuant to clause (a)(vi) above in a previous period: $______ iii Any
  extraordinary, unusual or non-recurring gains for such period and all
  non-cash items of income (other than the accrual of revenue or recording of
  receivables in the Ordinary Course of Business) for Subject Period: $______
  Total Consolidated EBITDA $______ confidential confidential 

  






 















	
  

  	
  EXHIBIT E 20
  #85941052v7 Attachment 3 The information described herein is as of ______,
  20__, and pertains to the period from _________, 20__ to ________, 20__ (such
  ending date the “Statement Date” and such period the “Excess Cash Flow
  Period”).22 Excess Cash Flow a. The sum of: i consolidated EBITDA for Excess
  Cash Flow Period (excluding any non-cash items increasing Consolidated EBITDA
  pursuant to clause (a)(ix) of the definition thereof):23 $______ ii any
  decrease in working capital (excluding cash and cash equivalents but
  including changes in Inventory) of Holdings, Parent, the Borrower and the
  Restricted Subsidiaries for Excess Cash Flow Period in excess of $20,000,000:
  $______ iii Sum of lines a.i and a.ii $______ b. The sum, without
  duplication, of: i any provision for taxes based on income, capital, or
  profits, including state, franchise and similar taxes and foreign withholding
  taxes paid (without duplication of any deduction in any prior Excess Cash
  Flow Period for taxes accrued) or accrued and due and payable within 105 days
  of the end of such Excess Cash Flow Period during such period (including
  without duplication Permitted Tax Distributions paid in cash by Holdings,
  Parent, the Borrower and the Restricted Subsidiaries) with respect to Excess
  Cash Flow Period: $______ ii consolidated Interest Expense for Excess Cash
  Flow Period: $______ iii capital Expenditures and Investments permitted under
  Section 6.05 (other than Sections 6.05(a), (b), (c), (e) and any other
  intercompany Investments between or among Holdings, Parent, the Borrower and
  any Restricted Subsidiaries) made or consummated during Excess Cash Flow
  Period, in each case to the extent funded with $______ 22 Each Subject Period
  to be a fiscal year of Holdings. 23 Use Line 20 minus Line 11 from Attachment
  2 to this Compliance Certificate. confidential confidential 

  






 















	
  

  	
  EXHIBIT E 21
  #85941052v7 Internally Generated Cash Flow: iv permanent repayments of
  Indebtedness (other than (x) mandatory prepayments of Loans under Section
  2.13(a), (b) or (c) and (y) optional prepayments of the Loans made pursuant
  to Section 2.12 and the amount of cash paid for Loans acquired by a
  Purchasing Borrower Party and cancelled in accordance with Section 9.04(m)
  and pursuant to Dutch Auction procedures open to all Lenders on a pro rata
  basis) made by Holdings, Parent, the Borrower and the Restricted Subsidiaries
  during such Excess Cash Flow Period with Internally Generated Cash Flow, but
  only to the extent that the Indebtedness so prepaid by its terms cannot be
  reborrowed or redrawn and such prepayments do not occur in connection with a
  refinancing of all or any portion of such Indebtedness: $______ v cash
  expenditures made during such Excess Cash Flow Period that increased
  Consolidated EBITDA for Excess Cash Flow Period pursuant to clause (a)(v),
  (a)(viii), (a)(x), (a)(xii) and (a)(xiv) of the definition of “Consolidated
  EBITDA”: $______ vi any increase in working capital (other than cash and cash
  equivalents but including changes in Inventory) of Holdings, Parent, the
  Borrower and its Restricted Subsidiaries for Excess Cash Flow Period in
  excess of $20,000,000: $______ vii the aggregate consideration required to be
  paid in cash by Holdings, Parent, the Borrower or any of its Restricted Subsidiaries
  pursuant to binding contracts entered into during such period (the “Contract
  Consideration”) relating to Permitted Acquisitions or Capital Expenditures to
  be consummated or made within 365 days following the end of such Excess Cash
  Flow Period; provided that to the extent the amount actually utilized to fund
  such Permitted Acquisition or Capital Expenditure during such 365-day period
  from Internally Generated Cash Flow is less than the Contract Consideration,
  the amount of such shortfall shall be added to the calculation of Excess Cash
  Flow at the end of such period: $______ viii cash payments against non-cash
  charges accrued in a prior Excess Cash Flow Period (and that reduced Excess
  Cash Flow in such prior period): $______ confidential confidential 

  






 















	
  

  	
  EXHIBIT E 22
  #85941052v7 ix Sum of lines b.i through b.viii $______ Total Excess Cash
  Flow: $______ II. Uses of Available Amount during the period covered by the
  financial statement delivered with this Compliance Certificate: confidential
  confidential 

  






 















	
  

  	
  EXHIBIT E 23
  #85941052v7 Attachment 4 The information described herein is as of ______,
  20__. I. Available Amount: a. The sum of: i $30,000,000 (less the aggregate
  amount of Investments made in Unrestricted Subsidiaries or joint ventures
  pursuant to Section 6.05(o) of the Credit Agreement): $______ ii the
  Cumulative Retained Excess Cash Flow Amount on such date: $______ iii the net
  cash proceeds from (A) the issuance of Equity Interests of Holdings after the
  Closing Date (other than Disqualified Stock) and (B) all contributions of
  cash common equity to Holdings iv the aggregate net cash proceeds and the
  fair market value (as determined in good faith by the Board of Directors of
  Holdings) of property or assets received by Holdings, Parent, the Borrower or
  any Restricted Subsidiary from the issuance and sale by Holdings, Parent, the
  Borrower or any Restricted Subsidiary after the Closing Date of Indebtedness
  that shall have been converted into or exchanged for Equity Interests of
  Holdings or a direct or indirect parent entity of Holdings, Parent, the
  Borrower or any such Restricted Subsidiary (other than Disqualified Stock)
  $______ v to the extent not already reflected as a return of capital with
  respect to such Investment for purposes of determining the amount of the
  Investment, the proceeds received by Holdings, Parent, Borrower or any
  Restricted Subsidiary after the Closing Date in connection with cash returns,
  cash profits, cash distributions and similar cash amounts, repayments of
  loans in cash, in each case received on any Investment made after the Closing
  Date pursuant to Section 6.05(n) (in an amount not to exceed the original
  amount of such Investment) $______ vi to the extent not already reflected as
  a return of capital with respect to such Investment for purposes of
  determining the amount of the Investment, the proceeds received by Holdings,
  Parent, Borrower or any Restricted Subsidiary $______ confidential
  confidential 

  






 















	
  

  	
  EXHIBIT E 24
  #85941052v7 after the Closing Date in connection with cash returns, cash
  profits, cash distributions and similar cash amounts, repayments of loans in
  cash, in each case received on any Investment made after the Closing Date
  pursuant to Section 6.05(n) (in an amount not to exceed the original amount
  of such Investment) Total: $______ b. Less the aggregate amount of the
  Available Amount previously utilized pursuant to Section 6.04(a)(vi), Section
  6.05(n) and Section 6.08(b)(ii) of the Credit Agreement $______ Total:
  Available Amount: $______ confidential confidential 

  






 















	
  

  	
  EXHIBIT E 25
  #85941052v7 [Attachment 5 Perfection Certificate Supplement] confidential
  confidential 

  






 















	
  

  	
  EXHIBIT F
  #85941052v7 EXHIBIT F FORM OF AFFILIATE SUBORDINATION AGREEMENT This
  Affiliate Subordination Agreement (the “Agreement”) is dated as of [ ], 20[ ]
  and is entered into by and between [INSERT NAME OF OBLIGOR] (the “Loan
  Party”) and [INSERT NAME OF LENDER] (the “Subordinated Lender”), in favor of
  the Senior Lenders (as defined below). Terms defined in the Credit Agreement
  (a copy of which is acknowledged to have been received by the Subordinated
  Lender) identified below and not otherwise defined herein have, as used
  herein, the respective meanings provided for therein. Section 1. Agreement to
  Subordinate. The Loan Party’s obligations to the Subordinated Lender under
  [INSERT NAME OF DOCUMENT] (the “Subordinated Obligations”) are subordinated
  in right of payment, to the extent and in the manner provided in this
  Agreement, to the prior payment of all Senior Debt. “Senior Debt” shall mean
  the Obligations (as defined in the Second Lien Credit Agreement dated as of
  June 9, 2014 (as amended, restated, amended and restated, supplemented or
  otherwise modified from time to time, the “Credit Agreement”) among Neff
  Rental LLC, a Delaware limited liability company, Neff LLC, a Delaware
  limited liability company, Neff Holdings LLC, a Delaware limited liability
  company, the lenders from time to time party thereto and Credit Suisse AG, as
  administrative agent and as collateral agent). “Senior Lenders” shall mean
  the holders from time to time of the Senior Debt. The subordination
  provisions of this Agreement are for the benefit of, and are enforceable by,
  the Senior Lenders or their designated representatives. Section 2.
  Liquidation, Dissolution, Bankruptcy. Upon any payment or distribution of the
  assets of the Loan Party to creditors upon a total or partial liquidation or
  a total or partial dissolution of the Loan Party or in a bankruptcy,
  reorganization, insolvency, receivership or similar proceeding relating to
  the Loan Party or its property: (1) the Senior Lenders are entitled to
  receive payment in full in cash of all Senior Debt, including all interest
  accrued or accruing on the Senior Debt after the commencement of any
  bankruptcy, insolvency or reorganization or similar case or proceeding at the
  rates (including, without limitation, any rates applicable upon default)
  specified in the Credit Agreement, whether or not the claim for the interest
  is allowed or allowable as a claim in the case or proceeding with respect to
  the Senior Debt (for the avoidance of doubt, only such payment constituting
  “payment in full” or “paid in full” hereunder) before the Subordinated Lender
  will be entitled to receive any payment of principal of, or interest on, the
  Subordinated Obligations; and (2) until the Senior Debt is paid in full, any
  such payment or distribution to which the Subordinated Lender would be
  entitled but for these subordination provisions shall instead be made to the
  Senior Lender as its interests may appear. confidential confidential 

  






 















	
  

  	
  EXHIBIT F 27
  #85941052v7 Section 3. Default or Event of Default on Senior Debt. Except
  with the written consent of, or upon demand by, the Senior Lenders or the
  Administrative Agent, the Loan Party shall not pay any or all of the
  Subordinated Obligations and the Subordinated Lender shall not take or
  receive from the Loan Party, directly or indirectly, in cash or other
  property or by set-off or in any other manner, including, without limitation,
  from or by way of collateral, payment of all or any of the Subordinated
  Obligations if, at such time, (a) the maturity of some or all of the Senior
  Debt shall have been accelerated or (b) any Default or Event of Default has
  occurred or is continuing. Section 4. When Distribution Must Be Paid Over. If
  a payment or other distribution is made to the Subordinated Lender that
  because of the subordination provisions of this Agreement should not have
  been made to it, the Subordinated Lender shall hold it in trust for the
  Senior Lender and pay it over to the Senior Lenders as its interests may
  appear. Section 5. Subrogation. A distribution made under these subordination
  provisions to any Senior Lender or the Administrative Agent which otherwise
  would have been made to the Subordinated Lender is not, as between the Loan
  Party and the Subordinated Lender, a payment by the Loan Party on the Senior
  Debt. After all Senior Debt is paid in full and until the Subordinated
  Obligations are paid in full, the Subordinated Lender will be subrogated to
  the rights of the Senior Lender to receive payments in respect of the Senior
  Debt. Section 6. Relative Rights; Subordination Not to Prevent Events of
  Default or Limit Right to Accelerate. The subordination provisions of this
  Agreement define the relative rights of the Subordinated Lender and the
  Senior Lenders and do not impair, as between the Loan Party and the
  Subordinated Lender, the obligation of the Loan Party, which is absolute and
  unconditional, to pay principal of, and interest on, the Subordinated Obligations
  in accordance with their terms; provided that so long as any Default or Event
  of Default has occurred and is continuing, the Subordinated Lender shall not
  be entitled to, and waives its right to, accelerate the maturity of the
  Subordinated Obligations upon a default under this Agreement or exercise any
  remedies upon a default under this Agreement. The failure to make a payment
  on the Subordinated Obligations by reason of these subordination provisions
  does not prevent the occurrence of a default under this Agreement. Section 7.
  Subordinated Lender Entitled to Rely. For the purpose of ascertaining the
  outstanding amount of the Senior Debt, the Senior Lenders and the
  Administrative Agent, and all other information relevant to making any
  payment or distribution to the Senior Lender pursuant hereto, the
  Subordinated Lender is entitled to rely upon an order or decree of a court of
  competent jurisdiction by a final and non-appealable judgment in which any
  proceedings of the nature referred to in Section 2 above are pending, a
  certificate of the liquidating trustee or other person making a payment or
  distribution to the Subordinated Lender, or information provided by the
  Senior Lender or the Administrative Agent. Section 8. Subordination May Not
  Be Impaired By Loan Party. No right of the Senior Lender to enforce the
  subordination of the Subordinated Obligations will be impaired by any act or
  failure to act by the Loan Party or by its failure to comply with the
  provisions hereunder. confidential confidential 

  






 















	
  

  	
  EXHIBIT F 28
  #85941052v7 Section 9. Reliance by Senior Lender on Subordination Provisions;
  No Waiver. (a) The Subordinated Lender acknowledges and agrees that the
  subordination provisions of this Agreement are, and are intended to be, an
  inducement and a consideration to the Senior Lenders, whether the Senior Debt
  was created or acquired before or after the incurrence of the Subordinated
  Obligations, to acquire or to hold the Senior Debt, and the Senior Lenders
  will be deemed conclusively to have relied on these subordination provisions
  in acquiring and holding such Senior Debt. (b) The Senior Lenders or the
  Administrative Agent may, at any time and from time to time, without the
  consent of or notice to the Subordinated Lender, without incurring any
  liability or responsibility to the Subordinated Lender, and without impairing
  the rights of the Senior Lender under these subordination provisions, do any
  of the following: (1) change the manner, place or terms of payment or extend
  the time of payment of, or renew or alter, the Senior Debt or any instrument
  evidencing the same or any agreement under which the Senior Debt is
  outstanding or secured; (2) sell, exchange, release or otherwise deal with
  any property pledged, mortgaged or otherwise securing the Senior Debt; (3)
  release any person liable in any manner for the payment of the Senior Debt;
  (4) exercise or refrain from exercising any rights against the Loan Party and
  any other person; or (5) take any other actions permitted under the terms of
  the Credit Agreement. Section 10. Applicable Law. THIS AGREEMENT AND THE
  OTHER LOAN DOCUMENTS AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION
  (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR
  RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (AS EXPRESSLY SET FORTH
  IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
  BY THE LAWS OF THE STATE OF NEW YORK. Section 11. Subject to the
  Intercreditor Agreement. Notwithstanding anything herein to the contrary,
  this Agreement is subject to the provisions of the Intercreditor Agreement,
  dated as of June 9, 2014 as the same may be amended, supplemented, modified
  or replaced from time to time (the “Intercreditor Agreement”) among Bank of
  America, N.A., as First Lien Agent, Credit Suisse AG, as and Second Lien
  Collateral Agent, Bank of America, N.A., as Control Agent and the Grantors
  from time to time a party thereto. In the event of any conflict between the
  terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor
  Agreement shall govern. Compliance by any Loan Party with any term of the
  Intercreditor Agreement shall not result in any breach or other violation of
  any term of this Agreement. confidential confidential 

  






 















	
  

  	
  EXHIBIT F 29
  #85941052v7 [Signature pages follow] confidential confidential 

  






 















	
  

  	
  EXHIBIT F 30
  #85941052v7 [LOAN PARTY] By: Name: Title: [SUBORDINATED LENDER] By: Name:
  Title: confidential confidential 

  






 















	
  

  	
  EXHIBIT G-1
  #85941052v7 EXHIBIT G-1 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign
  Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
  Reference is hereby made to the Second Lien Credit Agreement dated as of June
  9, 2014 (as amended, supplemented or otherwise modified from time to time,
  the “Credit Agreement”), among Neff Rental LLC, as Borrower (the “Borrower”),
  Neff LLC, Neff Holdings LLC, each Lender from time to time party thereto, and
  Credit Suisse AG, as administrative agent and collateral agent (the
  “Administrative Agent”). Pursuant to the provisions of Section 2.20(f) of the
  Credit Agreement, the undersigned hereby certifies that (i) it is the sole
  record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing
  such Loan(s)) in respect of which it is providing this certificate, (ii) it
  is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii)
  it is not a “10 percent shareholder” of the Borrower within the meaning of
  Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign
  corporation related to the Borrower as described in Section 881(c)(3)(C) of
  the Code. The undersigned has furnished the Administrative Agent and the
  Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN
  or IRS Form W-8BEN-E, as applicable. By executing this certificate, the
  undersigned agrees that (1) if the information provided on this certificate
  changes, the undersigned shall promptly so inform the Borrower and the
  Administrative Agent, and (2) the undersigned shall have at all times
  furnished the Borrower and the Administrative Agent with a properly completed
  and currently effective certificate in either the calendar year in which each
  payment is to be made to the undersigned, or in either of the two calendar
  years preceding such payments. Unless otherwise defined herein, terms defined
  in the Credit Agreement and used herein shall have the meanings given to them
  in the Credit Agreement. [NAME OF LENDER] By: Name: Title: Date: ________ __,
  20[ ] confidential confidential 

  






 















	
  

  	
  EXHIBIT G-2
  #85941052v7 EXHIBIT G-2 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign
  Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
  Reference is hereby made to the Second Lien Credit Agreement dated as of June
  9, 2014 (as amended, supplemented or otherwise modified from time to time,
  the “Credit Agreement”), among Neff Rental LLC, as Borrower (the “Borrower”),
  Neff LLC, Neff Holdings LLC, each Lender from time to time party thereto, and
  Credit Suisse AG, as administrative agent and collateral agent (the “Administrative
  Agent”). Pursuant to the provisions of Section 2.20(f) of the Credit
  Agreement, the undersigned hereby certifies that (i) it is the sole record
  and beneficial owner of the participation in respect of which it is providing
  this certificate, (ii) it is not a bank within the meaning of Section
  881(c)(3)(A) of the Code, (iii) it is not a “10 percent shareholder” of the
  Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it
  is not a controlled foreign corporation related to the Borrower as described
  in Section 881(c)(3)(C) of the Code. The undersigned has furnished its
  participating Lender with a certificate of its non-U.S. Person status on IRS
  Form W-8BEN or IRS form W-8BEN-E, as applicable. By executing this
  certificate, the undersigned agrees that (1) if the information provided on
  this certificate changes, the undersigned shall promptly so inform such
  Lender in writing, and (2) the undersigned shall have at all times furnished
  such Lender with a properly completed and currently effective certificate in
  either the calendar year in which each payment is to be made to the
  undersigned, or in either of the two calendar years preceding such payments.
  Unless otherwise defined herein, terms defined in the Credit Agreement and
  used herein shall have the meanings given to them in the Credit Agreement.
  [NAME OF PARTICIPANT] By: Name: Title: Date: ________ __, 20[ ] confidential
  confidential 

  






 















	
  

  	
  EXHIBIT G-3
  #85941052v7 EXHIBIT G-3 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign
  Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
  Reference is hereby made to the Second Lien Credit Agreement dated as of June
  9, 2014 (as amended, supplemented or otherwise modified from time to time,
  the “Credit Agreement”), among Neff Rental LLC, as Borrower (the “Borrower”),
  Neff LLC, Neff Holdings LLC, each Lender from time to time party thereto, and
  Credit Suisse AG, as administrative agent and collateral agent (the
  “Administrative Agent”). Pursuant to the provisions of Section 2.20(f) of the
  Credit Agreement, the undersigned hereby certifies that (i) it is the sole
  record owner of the participation in respect of which it is providing this
  certificate, (ii) its direct or indirect partners/members are the sole
  beneficial owners of such participation, (iii) with respect such
  participation, neither the undersigned nor any of its direct or indirect
  partners/members is a bank extending credit pursuant to a loan agreement
  entered into in the ordinary course of its trade or business within the meaning
  of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect
  partners/members is a “10 percent shareholder” of the Borrower within the
  meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or
  indirect partners/members is a controlled foreign corporation related to the
  Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned
  has furnished its participating Lender with IRS Form W-8IMY (including any
  applicable “Withholding Statement” required by applicable law to be
  associated with the IRS Form W-8IMY) accompanied by one of the following
  forms from each of its partners/members that is claiming the portfolio
  interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as
  applicable or (ii) an IRS Form W-8IMY (including any applicable Withholding
  Statement” required by applicable law to be associated with the IRS Form W-
  8IMY) accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable,
  as applicable from each of such partner’s/member’s beneficial owners that is
  claiming the portfolio interest exemption. By executing this certificate, the
  undersigned agrees that (1) if the information provided on this certificate
  changes, the undersigned shall promptly so inform such Lender and (2) the
  undersigned shall have at all times furnished such Lender with a properly
  completed and currently effective certificate in either the calendar year in
  which each payment is to be made to the undersigned, or in either of the two
  calendar years preceding such payments. Unless otherwise defined herein,
  terms defined in the Credit Agreement and used herein shall have the meanings
  given to them in the Credit Agreement. [NAME OF PARTICIPANT] By: Name: Title:
  Date: ________ __, 20[ ] confidential confidential 

  






 















	
  

  	
  EXHIBIT G-4 #85941052v7
  EXHIBIT G-4 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That
  Are Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby
  made to the Second Lien Credit Agreement dated as of June 9, 2014 (as
  amended, supplemented or otherwise modified from time to time, the “Credit
  Agreement”), among Neff Rental LLC, as Borrower (the “Borrower”), Neff LLC,
  Neff Holdings LLC, as Holdings, each lenders from time to time party thereto,
  and Credit Suisse AG, as administrative agent and collateral agent (the
  “Administrative Agent”). Pursuant to the provisions of Section 2.20(f) of the
  Credit Agreement, the undersigned hereby certifies that (i) it is the sole
  record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in
  respect of which it is providing this certificate, (ii) its direct or
  indirect partners/members are the sole beneficial owners of such Loan(s) (as
  well as any Note(s) evidencing such Loan(s)), (iii) with respect to the
  extension of credit pursuant to this Credit Agreement or any other Loan
  Document, neither the undersigned nor any of its direct or indirect
  partners/members is a bank extending credit pursuant to a loan agreement
  entered into in the ordinary course of its trade or business within the meaning
  of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect
  partners/members is a “10 percent shareholder” of the Borrower within the
  meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or
  indirect partners/members is a controlled foreign corporation related to the
  Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned
  has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY
  (including any applicable “Withholding Statement” required by applicable law
  to be associated with the IRS Form W-8IMY) accompanied by one of the
  following forms from each of its partners/members that is claiming the
  portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as
  applicable or (ii) an IRS Form W-8IMY (including any applicable “Withholding
  Statement” required by applicable law to be associated with the IRS Form
  W-8IMY) accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable
  from each of such partner’s/member’s beneficial owners that is claiming the
  portfolio interest exemption. By executing this certificate, the undersigned
  agrees that (1) if the information provided on this certificate changes, the
  undersigned shall promptly so inform the Borrower and the Administrative Agent,
  and (2) the undersigned shall have at all times furnished the Borrower and
  the Administrative Agent with a properly completed and currently effective
  certificate in either the calendar year in which each payment is to be made
  to the undersigned, or in either of the two calendar years preceding such
  payments. Unless otherwise defined herein, terms defined in the Credit
  Agreement and used herein shall have the meanings given to them in the Credit
  Agreement. [NAME OF LENDER] By: Name: Title: confidential confidential 

  






 















	
  

  	
  35 #85941052v7
  Date: ________ __, 20[ ] confidential confidential