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EXHIBIT 4.1
EXECUTION COPY
NEFF RENTAL LLC,
NEFF FINANCE CORP.,
the GUARANTORS named herein
and
WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
INDENTURE
Dated as of July 8, 2005
11¼% Second Priority Senior Secured Notes due 2012
CROSS-REFERENCE TABLE*
N.A. means not applicable. * This Cross-Reference Table is not part of this Indenture.
TABLE OF CONTENTS
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INDENTURE dated as of July 8, 2005, among Neff Rental LLC, a Delaware limited liability company, Neff Finance Corp., a Delaware corporation, the Guarantors (as defined herein) and Wells Fargo Bank, National Association, a national banking association, as Trustee.
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Issuers’ Initial Notes, Exchange Notes and Private Exchange Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCESECTION 1.01. Definitions . As used in this Indenture, the following terms have the meanings set forth below:
“ ABL Credit Facility ” means the Amended and Restated Credit Agreement dated as of July 8, 2005, among the Issuers, Neff Rental, the lenders thereto in their capacities as lenders thereunder and General Electric Capital Corporation, as administrative agent for the lenders and the other secured parties thereto, together with the related documents thereto (including any guarantee agreements and security documents), in each case, as amended, restated, supplemented, modified, increased, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.
“ ABL Facility Agent ” means, at any time, the Person serving at such time as the “Agent” or “Administrative Agent” under the ABL Credit Facility or any other representative then most recently designated in accordance with the applicable provisions of the ABL Credit Facility, together with its successors in such capacity.
“ Acquired Indebtedness ” means (1) Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of the Company or at the time it merges or consolidates with or into the Company or any of its Restricted Subsidiaries or that is assumed in connection with the acquisition of assets from such Person and in each case not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of the Company or such acquisition, merger or consolidation and (2) Indebtedness secured by an existing Lien encumbering any asset acquired by such specified Person.
“ Additional Interest ” means all additional interest then owing pursuant to Section 6 of the Registration Rights Agreement.
“ Additional Notes ” means Notes issued under this Indenture after the Issue Date and in compliance with Sections 2.13, 4.09 and 4.12, it being understood that any Note issued in exchange for or replacement of any Initial Note issued on the Issue Date shall not be an Additional Note, including any such Notes issued pursuant to a Registration Rights Agreement or pursuant to Section 2.07.
“ Adjusted Treasury Rate ” means, with respect to any redemption date, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities”, for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after June 15, 2009 yields for the two published maturities most
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closely corresponding to the Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date, in each case calculated on the third Business Day immediately preceding the redemption date, plus 50 basis points.
“ Affiliate ” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative of the foregoing. Notwithstanding the foregoing, no Person (other than the Company or any Subsidiary of the Company) in whom a Securitization Entity makes an Investment in connection with a Qualified Securitization Transaction shall be deemed to be an Affiliate of the Company or any of its Subsidiaries solely by reason of such Investment.
“ Agent ” means any Registrar, Paying Agent or co-registrar.
“ Applicable Premium ” means with respect to a Note at any redemption date, the greater of (1) 1.00% of the principal amount of such Note and (2) the excess of (A) the present value at such redemption date of (i) the redemption price of such Note on June 15, 2009 (such redemption price being described in Section 3.07(a) exclusive of any accrued interest) plus (ii) all required remaining scheduled interest payments due on such Note through June 15, 2009 (but excluding accrued and unpaid interest to the redemption date), computed using a discount rate equal to the Adjusted Treasury Rate, over (B) the principal amount of such Note on such redemption date.
“ Asset Acquisition ” means (1) an Investment by the Company or any Restricted Subsidiary of the Company in any other Person pursuant to which such Person shall become a Restricted Subsidiary of the Company, or shall be merged with or into or consolidated with the Company or any Restricted Subsidiary of the Company, or (2) the acquisition by the Company or any Restricted Subsidiary of the Company of the assets of any Person (other than a Restricted Subsidiary of the Company) which constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person, other than in the ordinary course of business.
“ Asset Sale ” means any direct or indirect sale, issuance, conveyance, transfer, lease (other than leases entered into in the ordinary course of business), assignment or other transfer for value by the Company or any of its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any Person other than the Company or a Restricted Subsidiary of the Company of:
(1) any Capital Stock of any Restricted Subsidiary of the Company, or
(2) any other property or assets of the Company or any Restricted Subsidiary of the Company other than in the ordinary course of business;
provided, however, that Asset Sales shall not include:
(a) a transaction or series of related transactions for which the Company or its Restricted Subsidiaries receive aggregate consideration of less than $2.5 million;
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(b) the sale, lease, conveyance, disposition or other transfer of all or substantially all of the assets of any Issuer as permitted under Section 5.01 or any disposition that constitutes a Change of Control;
(c) the sale or discount, in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(d) disposals or replacements of damaged, worn-out, surplus or obsolete equipment (including resale of rental equipment from the rental fleet), inventory or other assets in the ordinary course of business;
(e) the sale, lease, conveyance, disposition or other transfer by the Company or any Restricted Subsidiary of the Company of assets or property to one or more Restricted Subsidiaries of the Company in connection with Investments permitted under Section 4.07 or pursuant to any Permitted Investment;
(f) sales of accounts receivable and related assets (including contract rights) of the type specified in the definition of Qualified Securitization Transaction to a Securitization Entity for the fair market value thereof, including cash in an amount at least equal to 75% of the fair market value thereof as determined in accordance with GAAP (for the purposes of this clause (f), Securitization Notes shall be deemed to be cash);
(g) dispositions in the ordinary course of business (including sales, leases or rentals of rental fleet and equipment in the ordinary course of business);
(h) foreclosures on assets;
(i) for purposes of Section 4.10 only, a disposition that constitutes a Restricted Payment (or would constitute a Restricted Payment but for the exclusions from the definition thereof) and that is not prohibited by Section 4.07;
(j) the sale of equipment to the extent that such equipment is exchanged for credit that is reasonably promptly applied against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of similar replacement equipment; provided that the Company or such Restricted Subsidiary receives fair market value for the equipment sold or exchanged under this clause (j);
(k) in the ordinary course of business, the license of patents, trademarks, copyrights and know-how to third Persons;
(l) the sale, transfer or other disposition of cash or Cash Equivalents;
(m) the lease or sublease of any property either (i) in the ordinary course of business and not interfering in any material respect with the business of the Company and its Restricted Subsidiaries, taken as a whole, or (ii) with respect to facilities that are temporarily not in use or pending their disposal and having a duration of not greater than 24 months; and
(n) a transfer of assets or Capital Stock between or among the Company and its Restricted Subsidiaries.
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“ Attributable Debt ” in respect of a Sale and Leaseback Transaction means, as at the time of determination, the present value (discounted at the interest rate borne by the Notes, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction (including any period for which such lease has been extended); provided , however , that if such Sale and Leaseback Transaction results in a Capitalized Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capitalized Lease Obligation.”
“ Bankruptcy Law ” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereinafter in effect, or any successor statute, and any other similar Federal, state or foreign bankruptcy, insolvency or receivership law.
“ Board of Directors ” means, as to any Person, (1) if such Person is a corporation, the board of directors of such Person or any duly authorized committee thereof and (2) if such Person is a limited liability company, the managing member or members or any controlling committee of managing members thereof or the Board of Directors of any managing member that is a corporation.
“ Board Resolution ” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“ Business Day ” means any day that is not a Legal Holiday.
“ Capital Stock ” means:
(1) with respect to any Person that is a corporation, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person or options to purchase the same; and
(2) with respect to any Person that is not a corporation, any and all partnership or other equity interests of such Person.
“ Capitalized Lease Obligation ” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP. For purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP.
“ Cash Equivalents ” means:
(1) United States dollars and cash deposit accounts;
(2) marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof;
(3) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s;
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(4) commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 from S&P or at least P-2 from Moody’s;
(5) certificates of deposit or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $250.0 million;
(6) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with any bank meeting the qualifications specified in clause (5) above;
(7) investments in money market funds which invest substantially all their assets in securities of the types described in clauses (1) through (6) above; and
(8) in the case of any Subsidiary organized or having its principal place of business outside the United States, investments denominated in the currency of the jurisdiction in which that Subsidiary is organized or has its principal place of business which are similar to the items specified in clauses (1), (2), (3), (5), (6) and (7) above.
“ Change of Control ” means the occurrence of one or more of the following events:
(1) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company (determined on a consolidated basis for the Company and the Company’s Restricted Subsidiaries) to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”), other than to the Permitted Holders or their Related Parties or any Permitted Group;
(2) the approval by the holders of Capital Stock of the Company of any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with the provisions of this Indenture);
(3) any Person or Group (other than the Permitted Holders or their Related Parties or any Permitted Group) shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Company;
(4) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors; or
(5) the failure at any time by the Company to beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, 100% of the Capital Stock of Neff Rental (except to the extent Neff Rental is merged with or into the Company in accordance with the terms of this Indenture).
“ Class ” means (1) in the case of Parity Junior Lien Debt, every Series of Parity Junior Lien Debt, taken together, and (2) in the case of Priority Lien Debt, every Series of Priority Lien Debt, taken together.
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“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Collateral ” means all the collateral described in the Note Security Documents (other than the Intercreditor Agreement).
“ Common Stock ” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common stock, whether outstanding on the Issue Date or issued after the Issue Date, and includes all series and classes of such common stock.
“ Company ” means Neff Rental LLC, a Delaware limited liability company, and its successors.
“ Comparable Treasury Issue ” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the notes from the redemption date to June 15, 2009, that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a maturity most nearly equal to June 15, 2009.
“ Comparable Treasury Price ” means, with respect to any redemption date, if clause (2) of the Adjusted Treasury Rate is applicable, the average of three, or such lesser number as is obtained by the trustee, Reference Treasury Dealer Quotations for such redemption date.
“ Consolidated EBITDA ” means, with respect to any Person, for any period, an amount equal to such Person’s Consolidated Net Income for such period increased (to the extent deducted in computing such Consolidated Net Income) by (without duplication):
(1) all income taxes and foreign withholding taxes of such Person and its Restricted Subsidiaries paid or accrued in accordance with GAAP for such period;
(2) Consolidated Fixed Charges;
(3) Consolidated Noncash Charges less any noncash items increasing Consolidated Net Income for such period (other than normal accruals in the ordinary course of business);
(4) any cash charges resulting from the Transactions that, in each case, are incurred prior to the six-month anniversary of the Issue Date;
(5) any non-capitalized transactions costs incurred in connection with actual, proposed or abandoned financings, acquisitions or divestitures, including, but not limited to, financing and refinancing fees and costs incurred in connection with the Transactions;
(6) actual expenses incurred in such period related to rental equipment operating leases that expired or were terminated during such period to the extent that the Company or any of its Restricted Subsidiaries acquired owned equipment with an aggregate original equipment cost equal to or greater than the aggregate original equipment cost of the equipment leased pursuant to such operating lease substantially concurrently with the expiration or termination of such operating lease;
(7) all extraordinary, unusual or nonrecurring charges, gains and losses (including all restructuring costs, litigation settlements or losses and any expense or charge related to the
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repurchase of Capital Stock or warrants or options to purchase Capital Stock) and the related tax effects according to GAAP; and
(8) any net after-tax income or loss from discontinued operations and any net after-tax gains or losses on disposal of discontinued operations;
all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP.
“ Consolidated Fixed Charge Coverage Ratio ” means, with respect to any Person, the ratio of (x) Consolidated EBITDA of such Person during the four full fiscal quarters (the “ Four-Quarter Period ”) ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio for which financial statements are available (the “ Transaction Date ”) to (y) Consolidated Fixed Charges of such Person for the Four-Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:
(1) the incurrence or repayment of any Indebtedness or the issuance of any Preferred Stock of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence or repayment of other Indebtedness or the issuance or redemption of other Preferred Stock (and the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to revolving credit facilities, occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment or issuance or redemption, as the case may be (and the application of the proceeds thereof), had occurred on the first day of the Four-Quarter Period; and
(2) Asset Sales (without regard to the $2.5 million limitation set forth in the definition thereof) or Asset Acquisitions, including: (A) any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness, and (B) any Consolidated EBITDA (including in any such pro forma calculation expense and cost reductions (in each case net of associated expenses) and other operating improvements (in each case net of associated expenses) for such Four-Quarter Period calculated in accordance with Regulation S-X promulgated under the Securities Act or any other regulation or policy of the SEC related thereto) attributable to the assets which are the subject of the Asset Acquisition or Asset Sale and without regard to clause (4) of the definition of Consolidated Net Income occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition (including the incurrence or assumption of any such Acquired Indebtedness) occurred on the first day of the Four-Quarter Period. If such Person or any of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred or otherwise assumed such other Indebtedness that was so guaranteed.
Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:
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(1) interest on outstanding Indebtedness determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Transaction Date; and
(2) notwithstanding clause (1) of this paragraph, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Interest Swap Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.
“ Consolidated Fixed Charges ” means, with respect to any Person for any period, the sum, without duplication, of:
(1) Consolidated Interest Expense; plus
(2) the product of (x) the amount of all cash dividend payments on any series of Preferred Stock of such Person times (y) a fraction, the numerator of which is one and the denominator of which is one minus the then current effective consolidated federal, state and local income tax rate of such Person, expressed as a decimal; provided that with respect to any series of Preferred Stock that was not paid cash dividends during such period but that is eligible to be paid cash dividends during any period prior to the maturity date of the Notes, cash dividends shall be deemed to have been paid with respect to such series of Preferred Stock during such period for purposes of this clause (2).
“ Consolidated Interest Expense ” means, with respect to any Person for any period, the sum of, without duplication:
(1) the aggregate of all cash and noncash interest expense with respect to all outstanding Indebtedness of such Person and its Restricted Subsidiaries, including the net costs associated with Interest Swap Obligations, for such period determined on a consolidated basis in conformity with GAAP, but excluding amortization or write-off of debt issuance costs;
(2) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; and
(3) the interest component of Capitalized Lease Obligations paid, accrued or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP.
“ Consolidated Net Income ” means, with respect to any Person, for any period, the aggregate net income (or loss) of such Person and its Restricted Subsidiaries for such period on a consolidated basis, determined in accordance with GAAP and without any deduction in respect of Preferred Stock dividends but , in the case of the Company, reduced by the amount of Restricted Payments made pursuant to Section 4.07(b)(11); provided, however, that (A) such Restricted Payments in respect of Tax Payments shall only reduce Consolidated Net Income to the extent that provision for the corresponding income tax liabilities has not already been included in the calculation of Consolidated Net Income and (B) such Restricted Payments in respect of general corporate and overhead expenses shall only reduce Consolidated Net Income to the extent not already deducted in computing Consolidated Net Income; provided further, however, that there shall not be included in such Consolidated Net Income:
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(1) gains and losses from Asset Sales (without regard to the $2.5 million limitation set forth in the definition thereof) and the related tax effects according to GAAP;
(2) gains and losses due solely to fluctuations in currency values and the related tax effects according to GAAP;
(3) the net income (or loss) of any Person acquired in a pooling of interests transaction accrued prior to the date it becomes a Restricted Subsidiary of the referent Person or is merged or consolidated with or into such Person or any Restricted Subsidiary of such Person;
(4) the net income of any Restricted Subsidiary of the referent Person to the extent that the declaration of dividends or similar distributions by that Restricted Subsidiary of that income is prohibited by contract, operation of law or otherwise;
(5) the net loss of any Person, other than a Restricted Subsidiary of the referent Person;
(6) the net income of any Person, other than a Restricted Subsidiary of the referent Person, except to the extent of cash dividends or distributions paid to the referent Person or a Restricted Subsidiary of the referent Person by such Person;
(7) in the case of a successor to the referent Person by consolidation or merger or as a transferee of the referent Person’s assets, any earnings of the successor corporation prior to such consolidation, merger or transfer of assets;
(8) any noncash compensation charges or gains, including any such charges or gains arising from stock options, restricted stock grants or other equity incentive programs;
(9) the cumulative effect of a change in accounting principles;
(10) any noncash goodwill or other intangible asset impairment charges incurred subsequent to the Issue Date resulting from the application of Financial Accounting Standards Board Statement Nos. 141 and 142 or any other noncash asset impairment charges incurred subsequent to the Issue Date resulting from the application of Financial Accounting Standards Board Statement No. 144; and
(11) any gain on the sale of equipment to the extent such equipment was the subject of an asset impairment, other charge or writedown in value by the Company or any of its Restricted Subsidiaries in a prior fiscal period to the extent such asset impairment, other charge or writedown was excluded from Consolidated Net Income by operation of clause (10) of this definition.
“ Consolidated Noncash Charges ” means, with respect to any Person, for any period, the aggregate depreciation, amortization (excluding amortization expense attributable to a prepaid expense item that was paid in cash in a prior period) and other noncash charges and expenses of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP (excluding any such noncash charges to the extent that they represent an accrual of or a reserve for cash expenditures or payments in any future period). Notwithstanding the foregoing, accruals in respect of payables in the ordinary course of business shall be deemed not to constitute a “Consolidated Noncash Charge.”
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“ Continuing Director ” means, as of any date of determination, any member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of Directors by any of the Permitted Holders or with the approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election or the applicable Guarantor, as the case may be.
“ Corporate Trust Office of the Trustee ” shall be at the address of the Trustee specified in Section 12.02 or such other address as to which the Trustee may give notice to the Company.
“ Credit Facilities ” means (1) the ABL Credit Facility and (2) one or more other debt facilities or commercial paper facilities with banks, institutional lenders or other Persons providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, bank guarantees or banker’s acceptances, in each case, as amended, restated, supplemented, modified, increased, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.
“ Currency Agreement ” means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any Restricted Subsidiary of the Company against fluctuations in currency values.
“ Default ” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.
“ Definitive Note ” means a certificated Note registered in the name of the Holder thereof and issued in accordance with the Appendix, in the form of Exhibit A except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
“ Designated Noncash Consideration ” means any noncash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Sale that is designated as Designated Noncash Consideration pursuant to an Officer’s Certificate that is delivered to the Trustee and executed by the principal executive officer or the principal financial officer of the Company or such Restricted Subsidiary at the time of such Asset Sale. Any particular item of Designated Noncash Consideration will cease to be considered to be outstanding once it has been sold for cash or Cash Equivalents. At the time of receipt of any Designated Noncash Consideration, the Company shall deliver an Officer’s Certificate to the Trustee which shall state the fair market value of such Designated Noncash Consideration and shall state the basis of such valuation, which shall be a report of an Independent Qualified Party with respect to the receipt in one transaction or a series of related transactions, of Designated Noncash Consideration with a fair market value in excess of $15.0 million.
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“ Discharge of Priority Lien Obligations ” means, subject to reinstatement of previously repaid Priority Lien Obligations as provided in the Intercreditor Agreement, the occurrence of all of the following:
(1) termination or expiration of all commitments to extend credit that would constitute Priority Lien Debt;
(2) payment in full in cash of the principal of and interest and premium (if any) on all Priority Lien Debt (other than any undrawn letters of credit);
(3) discharge or cash collateralization (to the extent of any letters of credit constituting Priority Lien Debt (A) in the case of the ABL Credit Facility, in the manner and pursuant to the procedures specified in the ABL Credit Facility or if not so specified at 105% of the aggregate undrawn amount and (B) in the case of any other Priority Lien Document, at the lesser of the amount specified in such document and 105% of the aggregate undrawn amount) of all such outstanding letters of credit constituting Priority Lien Debt; and
(4) payment in full in cash of all other Priority Lien Obligations that are outstanding and unpaid at the time the Priority Lien Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).
“ Disqualified Capital Stock ” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event, matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof on or prior to 91 days after the final maturity date of the Notes; provided , however , that any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof the right to require the issuer thereof to purchase or redeem such Capital Stock upon the occurrence of an “asset sale” or “change of control” occurring prior to 91 days following the maturity date of the Notes shall not constitute Disqualified Capital Stock if (i) the “asset sale” or “change of control” provisions applicable to such Capital Stock are not more favorable to the holders of such Capital Stock than the terms applicable to the Notes under Sections 4.10 and 4.15 and (ii) any such requirement only becomes operative after compliance with such terms applicable to the Notes, including the purchase of any Notes tendered pursuant thereto. The Company may designate any Preferred Stock issued by the Company that otherwise would not constitute “Disqualified Capital Stock” pursuant to this definition to be Disqualified Capital Stock for purposes of this Indenture; provided that (1) the Company makes such designation, by delivery of an Officer’s Certificate to the Trustee, on the date that the Company issues such Preferred Stock and (2) the issuance of such designated Disqualified Capital Stock complies with Section 4.09. The amount of Disqualified Capital Stock deemed to be outstanding at any time for purposes of this Indenture shall be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Capital Stock, exclusive of accrued dividends.
“ Domestic Restricted Subsidiary ” means any Restricted Subsidiary of the Company that is incorporated under the laws of the United States or any state thereof or the District of Columbia.
“ Equity Offering ” means, in connection with any optional redemption pursuant to Section 3.07(b), any offering of Qualified Capital Stock of the Company, Parent or any other direct or indirect parent of the Company; provided that in the case of a Qualified Capital Stock Offering by Parent
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or any other direct or indirect parent of the Company, such parent makes a direct or indirect contribution to the Company, or is directly or indirectly issued Qualified Capital Stock of the Company by the Company in an amount equal to the redemption price of the Notes to be redeemed in such redemption plus accrued and unpaid interest thereon.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto, and the rules and regulations promulgated thereunder.
“ Exchange Notes ” means (1) the 11¼% Second Priority Senior Secured Notes due 2012 issued pursuant to this Indenture in connection with a Registered Exchange Offer pursuant to a Registration Rights Agreement, (2) any Notes issued upon the reissuance or transfer of any Initial Notes pursuant to an effective Registration Statement or in reliance on Rule 144(k) under the Securities Act or any other valid exemption from the registration requirements of the Securities Act pursuant to which such Initial Notes are no longer required to bear any Private Placement Legend in accordance with this Indenture and (3) Additional Notes, if any, issued pursuant to a registration statement filed with the SEC under the Securities Act.
“ Exchange Offer Registration Statement ” means the Exchange Offer Registration Statement, as defined in the Registration Rights Agreement.
“ fair market value ” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair market value shall be determined by the Board of Directors of the Company acting reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors of the Company delivered to the Trustee; provided , however , that for purposes of (1) Section 4.10(1) and clause (j) of the definition of “Asset Sale,” fair market value with respect to Asset Sales (A) of less than $7.5 million shall be determined in good faith by senior management of the Company and (B) equal to or greater than $7.5 million shall be determined by the Board of Directors of the Company acting reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors of the Company delivered to the Trustee and (2) Sections 4.07 (a)(iii)(w) and (a)(iii)(y), if the fair market value of the property or assets in question is so determined to be in excess of $15.0 million, such determination must be confirmed by an Independent Qualified Party. For purposes of determining the fair market value of Capital Stock, the value of the Capital Stock of a Person shall be based upon such Person’s property and assets, exclusive of goodwill or similar intangible asset.
“ Finance Corp. ” means Neff Finance Corp., a Delaware corporation, and its successors.
“ Four-Quarter Period ” has the meaning specified in the definition of Consolidated Fixed Charge Coverage Ratio.
“ GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth in:
(1) the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants;
(2) statements and pronouncements of the Financial Accounting Standards Board;
(3) such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect from time to time; and
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(4) the rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial statements) in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC.
“ Global Note Legend ” means the legend set forth in the Appendix which is required to be placed on all Global Notes issued under this Indenture.
“ Global Notes ” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, in the form of Exhibit A, issued in accordance with Section 2.01, 2.06 or 2.13.
“ Government Securities ” means direct obligations of, or obligations guaranteed by, the United States of America, and for the payment of which the United States pledges its full faith and credit.
“ Grantors ” means the Issuers, each Guarantor and any other Person (if any) that grants a Lien on all or part of its assets or properties to secure all or part of the Secured Obligations.
“ Guarantee ” means the senior guarantee of the Notes by each Guarantor.
“ Guarantor ” means Neff Rental and each other Subsidiary of the Company (other than Finance Corp.) that incurs a Guarantee pursuant to the terms of this Indenture; provided that upon the release and discharge of such Restricted Subsidiary from its Guarantee in accordance with Section 11.06, such Restricted Subsidiary shall cease to be a Guarantor.
“ Hedging Agreement ” means any agreement with respect to the hedging of price risk associated with the purchase of commodities used in the business of the Company and its Restricted Subsidiaries.
“ Holder ” means a Person in whose name a Note is registered.
“ Indebtedness ” means, with respect to any Person, without duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the deferred purchase price of property and which is deferred for six months or longer from the date of issuance or assumption, all conditional sale obligations and all Obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business);
(5) all Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction;
(6) guarantees and other contingent Obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below;
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(7) all Obligations of any other Person of the type referred to in clauses (1) through (6) which are secured by any Lien on any property or asset of such Person, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset or the amount of the Obligation so secured;
(8) all Obligations under Interest Swap Obligations of such Person; and
(9) all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any.
For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors of the issuer of such Disqualified Capital Stock. For the purposes of calculating the amount of Indebtedness of a Securitization Entity outstanding as of any date, the face or notional amount of any interest in receivables or equipment that is outstanding as of such date shall be deemed to be Indebtedness but any such interests held by Affiliates of such Securitization Entity shall be excluded for purposes of such calculation.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness that does not require current payments of interest; and
(2) the principal amount thereof (together with any interest thereon that is more than 30 days past due), in the case of any other Indebtedness provided that the principal amount of any Indebtedness that is denominated in any currency other than United States dollars shall be the amount thereof, as determined pursuant to the foregoing provision, converted into United States dollars at the Spot Rate in effect on the date that Indebtedness was incurred or, if that Indebtedness was incurred prior to the Issue Date, the Spot Rate in effect on the Issue Date. If such Indebtedness is incurred to Refinance other Indebtedness denominated in a foreign currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant Spot Rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being Refinanced. The principal amount of any Indebtedness incurred to Refinance other Indebtedness, if incurred in a different currency from the Indebtedness being Refinanced, shall be calculated based on the Spot Rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such Refinancing.
Indebtedness shall not include obligations of any Person (A) arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business, provided that such obligations are extinguished within two Business Days of their incurrence, (B) resulting from the endorsement of negotiable instruments for collection in the ordinary course of business and consistent with past business practices and (C) under stand-by letters of credit to the extent collateralized by cash or Cash Equivalents.
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“ Independent Qualified Party ” means an investment banking firm, accounting firm or appraisal firm of national standing; provided , however , that such firm is not an Affiliate of the Company.
“ Indenture ” means this Indenture, as amended or supplemented from time to time.
“ Initial Notes ” means (1) $245.0 million in aggregate principal amount of 11¼% Second Priority Senior Secured Notes due 2012 of the Issuers issued on the Issue Date and (2) Additional Notes, if any, issued in a transaction exempt from the registration requirements of the Securities Act, in each case, to the extent such Notes are required to bear a Private Placement Legend in accordance with this Indenture.
“ Insolvency or Liquidation Proceeding ” means (1) any voluntary or involuntary proceeding under any Bankruptcy Law with respect to any Grantor, (2) any voluntary or involuntary appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Grantor or for a substantial part of the property or assets of any Grantor, (3) any voluntary or involuntary winding-up or liquidation of any Grantor or (4) a general assignment for the benefit of creditors by any Grantor.
“ Intercreditor Agreement ” means the intercreditor agreement dated as of July 8, 2005, among the Issuers, Neff Rental, General Electric Capital Corporation, as credit agreement agent and as Priority Lien Collateral Agent, and Wells Fargo Bank, National Association, as Trustee and as Parity Junior Lien Collateral Agent, as the same may be amended, restated, supplemented, modified or replaced from time to time.
“ Interest Swap Obligations ” means the obligations of any Person pursuant to any arrangement with any other Person whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include interest rate swaps, caps, floors, collars and similar agreements.
“ Investment ” means, with respect to any Person, any direct or indirect loan or other extension of credit (including a guarantee) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any Person. “Investment” shall exclude extensions of trade credit by the Company and its Restricted Subsidiaries in accordance with normal trade practices of the Company or such Restricted Subsidiary, as the case may be. If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Common Stock of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Restricted Subsidiary is no longer a Restricted Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Common Stock of such Restricted Subsidiary not sold or disposed of.
“ Iron Merger Partnership ” means Iron Merger Partnership, a Delaware general partnership, and its successors.
“ Issue Date ” means the date of original issue of the Notes on July 8, 2005.
“Issuer” means the Company or Finance Corp.
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“Issuers” means, collectively, the Company and Finance Corp.
“ Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in The City of New York, the city in which the principal corporate trust office of the Trustee is located or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.
“ Lien ” means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the Uniform Commercial Code or comparable law of any jurisdiction).
“ Management Services Agreement ” means the Management Services Agreement dated as of June 3, 2005, by and among Parent, Neff Rental and Odyssey Investment Partners, LLC.
“ Marketable Securities ” means publicly traded debt or equity securities that are listed for trading on a national securities exchange and that were issued by a corporation whose debt securities are rated in one of the three highest rating categories by either S&P or Moody’s.
“ Moody’s ” means Moody’s Investors Service, Inc., and its successors.
“ Neff Rental ” means Neff Rental, Inc., a Florida corporation, and its successors.
“ Net Cash Proceeds ” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents, including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents (other than the portion of any such deferred payment constituting interest) received by the Company or any of its Restricted Subsidiaries from such Asset Sale net of:
(1) reasonable out-of-pocket expenses and fees relating to such Asset Sale (including legal, accounting and investment banking fees and sales commissions);
(2) taxes paid or payable after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements; and
(3) appropriate amounts to be provided by the Company or any Restricted Subsidiary of the Company, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Company or any Restricted Subsidiary of the Company, as the case may be, after such Asset Sale, including sale or purchase price adjustments, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale.
“ Note Custodian ” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
“ Note Documents ” means this Indenture, the Notes and the Note Security Documents.
“Note Obligations” means the Notes and all other Obligations in respect thereof.
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“ Note Security Documents ” means the Intercreditor Agreement and all security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements or other grants or transfers for security executed and delivered by the Issuers or any other Grantor creating (or purporting to create) a Lien upon Collateral for the benefit of the Parity Junior Lien Collateral Agent, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms, this Indenture and the terms of the Intercreditor Agreement.
“ Notes ” means the Initial Notes, the Exchange Notes and the Private Exchange Notes, treated as a single class of securities.
“ Obligations ” means, with respect to any Indebtedness, any principal (including reimbursement obligations with respect to letters of credit whether or not drawn), interest (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in (1) in the case of Priority Lien Debt, the Priority Lien Documents or (2) in the case of other Indebtedness, the documentation governing such Indebtedness, in each case, even if such interest is not enforceable, allowable or allowed as a claim in such Insolvency or Liquidation Proceeding), premium (if any), fees, indemnifications, reimbursements, expenses and other liabilities payable under the documentation governing such Indebtedness; provided, however, that Obligations with respect to the Notes shall not include the fees and indemnifications in favor of the Trustee and other third parties other than the holders of such Notes.
“ Offering Circular” means the confidential offering circular dated June 30, 2005, used in connection with the issuance of Notes on the Issue Date.
“ Officer ” means the Chairman of the Board, the President, any Vice-President, the Treasurer or the Secretary of the Company, Finance Corp. or Neff Rental, as applicable.
“ Officer’s Certificate ” means a certificate signed on behalf of the Company, Finance Corp. or Neff Rental, as applicable, by one Officer of the Company, Finance Corp. or Neff Rental, as applicable, and in the case of an Officer’s Certificate delivered to the Trustee, a certificate that meets the requirements of Sections 12.04 and 12.05.
“ Opinion of Counsel ” means an opinion from legal counsel who is reasonably acceptable to the Trustee that meets the requirements of Sections 12.04 and 12.05. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.
“Parent” means Neff Corp., a Delaware corporation, and its successors.
“ Parity Junior Lien ” means any Lien granted pursuant to any Parity Junior Lien Security Document to the Parity Junior Lien Collateral Agent, at any time, upon any property of any Issuer or any other Grantor to secure Parity Junior Lien Obligations.
“ Parity Junior Lien Collateral Agent ” means Wells Fargo and its successors as collateral agent under this Indenture and any other Person designated as a collateral agent with respect to any other Series of Parity Junior Lien Debt; provided that, until such time that the Note Obligations have been discharged or paid in full, Wells Fargo and its successors as collateral agent under this Indenture shall be the sole authorized Person to act as the Parity Junior Lien Collateral Agent with respect to the Note Obligations.
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“ Parity Junior Lien Debt ” means:
(1) the Notes issued on the Issue Date (including any related Exchange Notes and Private Exchange Notes) and the related Guarantees; and
(2) any other Indebtedness of the Issuers or any other Grantor (including Additional Notes) that is secured equally and ratably with the Notes by a Parity Junior Lien that was permitted to be incurred and so secured under each applicable Secured Debt Document; provided that such Indebtedness is (A) if incurred by the Issuers, guaranteed by each Restricted Subsidiary of the Company that, on the date of incurrence of such Indebtedness, is a Guarantor or (B) if incurred by any Issuer or any other Grantor, guaranteed by the other Issuer and each Restricted Subsidiary of the Company that, on the date of incurrence of such Indebtedness, is a Guarantor; and provided , further , in the case of any Indebtedness referred to in this clause (2), that on or before the date on which such Indebtedness is incurred by the Issuers or any other Grantor, such Indebtedness is designated by the Company, in an Officer’s Certificate delivered to each Parity Junior Lien Representative and the Parity Junior Lien Collateral Agent, as “Parity Junior Lien Debt” for the purposes of this Indenture and the Intercreditor Agreement; provided that no Series of Secured Debt may be designated as both Parity Junior Lien Debt and Priority Lien Debt.
“ Parity Junior Lien Documents ” means, collectively, (a) the Note Documents and (b) each indenture, credit agreement or other agreement governing each other Series of Parity Junior Lien Debt and (c) the Parity Junior Lien Security Documents.
“ Parity Junior Lien Obligations ” means Parity Junior Lien Debt and all Obligations in respect of Parity Junior Lien Debt.
“ Parity Junior Lien Representative ” means:
(1) in the case of the Notes, the Parity Junior Lien Collateral Agent; and
(2) in the case of any other Series of Parity Junior Lien Debt, the trustee, agent or representative of the holders of such Series of Parity Junior Lien Debt who maintains the transfer register for such Series of Parity Junior Lien Debt and (a) is appointed (as evidenced by an Officer’s Certificate delivered to the Trustee) as a Parity Junior Lien Representative (for purposes related to the administration of the security documents) pursuant to the applicable indenture, credit agreement or other agreement governing such Series of Parity Junior Lien Debt, together with its successors in such capacity, and (b) has become a party to the Intercreditor Agreement by executing a joinder in the form required under the Intercreditor Agreement.
“ Parity Junior Lien Security Documents ” means the Intercreditor Agreement, each Note Security Document and all security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements, documents, instruments or other grants or transfers for security executed and delivered by Holdings, Neff Rental or any other Grantor creating (or purporting to create) a Lien upon Collateral for the benefit of the Parity Junior Lien Collateral Agent, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms, this Indenture and the Intercreditor Agreement.
“ Permitted Business ” means any business (including stock or assets) that derives a majority of its revenues from the business engaged in by the Company and its Restricted Subsidiaries on the Issue Date or activities that are reasonably similar, ancillary or related to, or a reasonable extension, development or expansion of, the businesses in which the Company and its Restricted Subsidiaries are engaged on the Issue Date.
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“ Permitted Group ” means any group of investors that is deemed to be a “person” (as such term is used in Section 13(d)(3) of the Exchange Act) by virtue of the Stockholders Agreement, as the same may be amended, modified or supplemented from time to time; provided that no single Person (together with its Affiliates), other than the Permitted Holders and their Related Parties, is the “beneficial owner” (as such term is used in Section 13(d) of the Exchange Act), directly or indirectly, of more than 50% of the voting power of the issued and outstanding Capital Stock of the Company that is “beneficially owned” (as defined above) by such group of investors.
“ Permitted Holders ” means Odyssey Investment Partners, LLC and its Affiliates (excluding Mr. J.C. Mas). Any Person or Permitted Group whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
“ Permitted Indebtedness ” means, without duplication, each of the following:
(1) Indebtedness under the Notes (other than Additional Notes) and Indebtedness consisting of the Guarantee of a Guarantor with respect to such Notes;
(2) Indebtedness of the Company or any of its Restricted Subsidiaries incurred pursuant to one or more Credit Facilities; provided , however , that after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (2) and then outstanding does not exceed the greater of (i) the lesser of (A) $225.0 million, less the aggregate amount of (x) Indebtedness of Securitization Entities at the time outstanding and (y) the sum of all principal payments with respect to such Indebtedness pursuant to Section 4.10(3)(A) and (B) the sum of (x) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries, (y) 90% of the net book value of the rental fleet of the Company and its Restricted Subsidiaries and (z) 60% of the book value of the inventory of the Company and its Restricted Subsidiaries, and (ii) the sum of (x) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries, (y) 85% of the net book value of the rental fleet of the Company and its Restricted Subsidiaries and (z) 60% of the book value of the inventory of the Company and its Restricted Subsidiaries; provided, however , that if on the date of incurrence of Indebtedness under this clause (2) after giving effect thereto, the Indebtedness incurred under this clause (2) exceeds or would exceed $225.0 million, then the Consolidated Fixed Charge Coverage Ratio of the Company shall be greater than or equal to 2.0 to 1.0 if such Indebtedness is incurred prior to July 8, 2007, or 2.25 to 1.0 if such Indebtedness is incurred thereafter; provided further, however , that the amount of Indebtedness permitted to be incurred pursuant to Credit Facilities in accordance with this clause (2) shall be in addition to any Indebtedness permitted to be incurred pursuant to Credit Facilities in reliance on, and in accordance with, clauses (7), (13) and (15) below and Section 4.09;
(3) Indebtedness of the Company and its Restricted Subsidiaries outstanding on the Issue Date (other than Indebtedness described in clause (1) or (2) of this definition) reduced by the amount of any scheduled amortization payments or mandatory prepayments when actually paid or permanent reductions thereof;
(4) Interest Swap Obligations of the Company or any of its Restricted Subsidiaries covering Indebtedness of the Company or any of its Restricted Subsidiaries; provided that any Indebtedness to which any such Interest Swap Obligations correspond is otherwise permitted to be incurred under this Indenture; and provided further that such Interest Swap Obligations are entered into, in the judgment of the Company, to protect the Company or any of its Restricted
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Subsidiaries from fluctuations in interest rates on its outstanding Indebtedness and not for purposes of speculation;
(5) Indebtedness of the Company or any Restricted Subsidiary of the Company under Hedging Agreements and Currency Agreements so long as any such agreement has been entered into in the ordinary course of business and not for purposes of speculation;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any such Restricted Subsidiaries; provided , however , that:
(a) if the Company or Finance Corp. is the obligor on such Indebtedness and the aggregate principal amount thereof exceeds $1.0 million, and the payee is a Restricted Subsidiary of the Company that is not a Guarantor, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, and
(b) (i) any subsequent issuance or transfer of Capital Stock that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary thereof, and
(ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof (other than by way of granting a Lien permitted under this Indenture or in connection with the exercise of remedies by a secured creditor)
shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) Indebtedness (including Capitalized Lease Obligations) incurred by the Company or any of its Restricted Subsidiaries to finance the purchase, lease or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) in an aggregate principal amount outstanding after giving effect to that incurrence not to exceed $10.0 million;
(8) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to the proviso of Section 4.09 or pursuant to clause (1), (3), (7), (13) or (16) or this clause (8); provided , however , that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary incurred pursuant to clause (16), such Refinancing Indebtedness shall be incurred only by such Subsidiary; provided further , however , that in the case of any Refinancing Indebtedness incurred to Refinance Indebtedness outstanding under clause (7), (13) or (16), such Refinancing Indebtedness shall be deemed to have been incurred and to be outstanding under such clause or clauses (7), (13) and (16), as applicable;
(9) Indebtedness consisting of any guarantee by the Company of Indebtedness of a Restricted Subsidiary of the Company and any guarantee by any Restricted Subsidiary of the Company of Indebtedness of the Company or any Restricted Subsidiary of the Company; provided that (a) such Indebtedness is permitted to be incurred under this Indenture and (b) such guarantees are subordinated to the Notes to the same extent as the Indebtedness being guaranteed;
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(10) Indebtedness arising from agreements of the Company or a Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase price, earn out or other similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Restricted Subsidiary of the Company, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition; provided that, with respect to any such disposition, the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(11) obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary of the Company in the ordinary course of business;
(12) the incurrence by a Securitization Entity of Indebtedness in a Qualified Securitization Transaction that is non-recourse to the Company or any Restricted Subsidiary of the Company (except for Standard Securitization Undertakings);
(13) Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount which, when taken together with all other Indebtedness of the Company and its Restricted Subsidiaries outstanding on the date of such incurrence (other than Indebtedness permitted by clauses (1) through (12) above, clauses (14) through (18) below or pursuant to the proviso of Section 4.09) does not exceed $15.0 million (which amount may, but need not, be incurred in whole or in part under a Credit Facility);
(14) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five business days of incurrence;
(15) Indebtedness of the Company or any of its Restricted Subsidiaries represented by letters of credit for the account of the Company or such Restricted Subsidiary, as the case may be, issued in the ordinary course of business of the Company or such Restricted Subsidiary, including in order to provide security for workers’ compensation claims or payment obligations in connection with self-insurance or similar requirements in the ordinary course of business and other Indebtedness with respect to workers’ compensation claims, self-insurance obligations, performance, bid and surety and similar bonds and completion guarantees provided by the Company or any Restricted Subsidiary of the Company in the ordinary course of business in an aggregate amount that, when taken together with the amount of all other Indebtedness of the Company or any of its Restricted Subsidiaries incurred pursuant to this clause (15) that is at the time outstanding, does not exceed $15.0 million;
(16) Indebtedness of a Restricted Subsidiary of the Company incurred and outstanding on the date such Restricted Subsidiary was acquired by the Company in a principal amount that, when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause (16) that is at the time outstanding, does not exceed $10.0 million; provided that such Indebtedness was incurred by such Restricted Subsidiary prior to such acquisition by the Company or one of its Restricted Subsidiaries and was not incurred in connection with, or contemplation of, such acquisition by the Company or one of its Restricted Subsidiaries;
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(17) the incurrence by the Company or any Guarantor of Indebtedness evidenced by promissory notes subordinated to the Notes issued to current or former employees, officers, directors or consultants of the Company or any Subsidiary of the Company (or their respective spouses) in lieu of cash payments for Capital Stock being repurchased from such Persons in an aggregate principal amount not to exceed $7.0 million; and
(18) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness, to the extent the proceeds of such Indebtedness are at the time of such incurrence deposited and used to defease the Notes in whole and not in part as described in Article 8.
For purposes of determining compliance with Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clause (1), clauses (3) through (12) and clauses (14) through (18) above or is permitted to be incurred pursuant to the proviso of Section 4.09, the Company shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness (or any portion thereof) in any manner that complies with Section 4.09 and Section 4.12; provided , however , that all Indebtedness under the ABL Credit Facility incurred or outstanding on the Issue Date shall be deemed to have been incurred pursuant to clause (2) and the Company shall not be permitted to reclassify all or any portion of any Indebtedness incurred pursuant to clause (2) or clause (13). Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of Section 4.09.
Notwithstanding the foregoing, neither the Company nor any Guarantor shall incur any Indebtedness set forth in this definition of “Permitted Indebtedness” if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Company or any Guarantor unless such Indebtedness shall be subordinated to the Notes or the applicable Guarantee to at least the same degree as such Subordinated Obligations; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or any Guarantor solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis.
“ Permitted Investments ” means:
(1) (a) Investments by the Company or any Restricted Subsidiary of the Company in (i) any Guarantor (whether existing on the Issue Date or created thereafter), (ii) any Person (including by means of any transfer of cash or other property) if, as a result of such Investment, such Person shall become a Guarantor or (iii) any Person, if as a result of such Investment, such Person is merged with or consolidated into the Company or a Guarantor and (b) Investments in the Company by any Restricted Subsidiary of the Company;
(2) Investments in cash and Cash Equivalents;
(3) loans and advances to employees and officers of the Company and its Restricted Subsidiaries for bona fide business purposes in an aggregate principal amount not to exceed $5.0 million at any one time outstanding;
(4) Hedging Agreements, Currency Agreements and Interest Swap Obligations entered into in the ordinary course of business and otherwise in compliance with this Indenture and not for purposes of speculation;
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(5) Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors or customers;
(6) Investments made by the Company or its Restricted Subsidiaries as a result of consideration received in connection with an Asset Sale made in compliance with Section 4.10;
(7) Investments existing on the Issue Date or made pursuant to commitments existing on the Issue Date;
(8) accounts receivable created or acquired in the ordinary course of business;
(9) guarantees by the Company or a Restricted Subsidiary of the Company permitted to be incurred under this Indenture;
(10) any Investment by the Company or a Restricted Subsidiary of the Company in a Securitization Entity or any Investment by a Securitization Entity in any other Person in connection with a Qualified Securitization Transaction; provided that any Investment in a Securitization Entity is in the form of a Securitization Note or an equity interest;
(11) other Investments to the extent paid for with Qualified Capital Stock of the Company;
(12) repurchases of the Notes; and
(13) any Investment by the Company or any of its Restricted Subsidiaries having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (13) that are at that time outstanding, not to exceed $15.0 million (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided , however , that if an Investment pursuant to this clause (13) is made in any Person that is not a Restricted Subsidiary of the Company at the date of the making of the Investment and such Person becomes a Restricted Subsidiary after such date, such Investment will thereafter be deemed to have been made pursuant to clause (1) above, and will cease to have been made pursuant to this clause (13).
“ Permitted Liens ” means:
(1) Liens securing (A) Priority Lien Debt in an aggregate principal amount not to exceed the Priority Lien Cap and (B) all related Priority Lien Obligations;
(2) Liens securing (A) Parity Junior Lien Debt and (B) all related Parity Junior Lien Obligations;
(3) Liens for taxes, assessments or governmental charges or claims either
(A) not delinquent; or
(B) contested in good faith by appropriate proceedings and as to which the Company or the applicable Restricted Subsidiary has set aside on its books such reserves as may be required pursuant to GAAP;
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(4) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen and repairmen and other Liens imposed by law incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP has been made in respect thereof;
(5) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, excluding any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);
(6) judgment Liens not giving rise to an Event of Default;
(7) easements, rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material respect with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;
(8) Liens securing (A) Indebtedness incurred pursuant to clause (7), (15) or (16) of the definition of “Permitted Indebtedness” and (B) all related Obligations;
(9) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(10) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;
(11) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements of the Company or any of its Restricted Subsidiaries, including rights of offset and set-off;
(12) Liens securing (A) Interest Swap Obligations entered into in the ordinary course of business and not for purposes of speculation which Interest Swap Obligations relate to Indebtedness that is otherwise permitted under this Indenture and (B) all related Obligations;
(13) Liens securing (A) Indebtedness under Hedging Agreements and Currency Agreements entered into in the ordinary course of business and not for purposes of speculation and (B) all related Obligations;
(14) Liens incurred in the ordinary course of business of the Company or any Restricted Subsidiary of the Company with respect to Indebtedness and the related Obligations that do not in the aggregate exceed $5.0 million at any one time outstanding;
(15) Liens on assets transferred to a Securitization Entity or on assets of a Securitization Entity, in either case incurred in connection with a Qualified Securitization Transaction;
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(16) leases or subleases granted to others that do not materially interfere with the ordinary course of business of the Company and its Restricted Subsidiaries;
(17) Liens existing on the Issue Date (other than Liens on Indebtedness that is Priority Lien Debt), together with any Liens securing Indebtedness incurred in reliance on clause (8) of the definition of “Permitted Indebtedness” in order to Refinance the Indebtedness secured by Liens existing on the Issue Date (other than Liens on Indebtedness that is Priority Lien Debt); provided , however , that (A) the Liens securing the Refinancing Indebtedness shall not extend to property other than that pledged under the Liens securing the Indebtedness being Refinanced and (B) the Indebtedness secured by such Lien at the time is not increased to any amount greater than the sum of (x) the outstanding principal amount or, if greater, committed amount of the Indebtedness being Refinanced at the time the original Lien became a Permitted Lien and (y) an amount necessary to pay interest, Required Premiums and fees and expenses related to such Refinancing;
(18) Liens in favor of the Company or a Restricted Subsidiary of the Company;
(19) Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to such acquisition, were not incurred in contemplation of such acquisition and do not extend to any other property owned by the Company or any Subsidiary of the Company (other than assets and property affixed or appurtenant thereto);
(20) Liens arising from filing precautionary Uniform Commercial Code financing statements regarding leases;
(21) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; and
(22) Liens that do not secure Indebtedness.
For purposes of determining the amount of Priority Lien Debt outstanding under clause (1) of this definition, all letters of credit will be valued at the face amount thereof, whether or not drawn (but without duplication of the principal amount of any other Indebtedness), and all Interest Swap Obligations will be valued at zero.
“ Permitted Payments to Parent ” means, without duplication as to amounts:
(1) any Restricted Payment made to Parent or any other direct or indirect parent company of the Company (other than Iron Merger Partnership and any direct or indirect parent company of Iron Merger Partnership) to be used by Parent or such other direct or indirect parent company solely (A) to pay its franchise taxes and other fees required to maintain its corporate existence, (B) to pay for general corporate and overhead expenses (including salaries and other compensation of the employees and directors, board activities, insurance, legal (including litigation, judgments and settlements), accounting, corporate reporting, administrative and other general operating expenses) incurred by Parent or such other parent company in the ordinary course of business or (C) to pay expenses incurred in connection with an initial public offering of Common Stock of Parent or such other direct or indirect parent; provided, however, that such Restricted Payments may not be made to pay such general corporate and overhead expenses to the extent that (x) the Company would not be permitted under this Indenture to take the actions giving rise to such expenses or to incur such expenses or (y) such expenses are attributable to the
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ownership or operation of any Person other than the Company and its Subsidiaries; provided further, however, that such Restricted Payments to Parent and such other direct or indirect parent company pursuant to this clause (1) shall not exceed in the aggregate $2.0 million per calendar year; and
(2) payments to Parent or any other direct or indirect parent company of the Company (other than Iron Merger Partnership and any direct or indirect parent company of Iron Merger Partnership) in respect of income taxes of the Company and any Subsidiaries of the Company (“ Tax Payments ”); provided, however, that the aggregate Tax Payments made since the Issue Date shall not exceed the lesser of:
(A) (i) the aggregate amount of the relevant tax (including any penalties and interest) that the Company would owe after the Issue Date if the Company were a “C” corporation for United States Federal, state and local income tax purposes filing a separate tax return (or a consolidated or combined return with any Subsidiaries of the Company that are members of a consolidated or combined group with Parent or such other direct or indirect parent company), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Company and its Subsidiaries, less (ii) the amount of any income taxes that the Company or its Subsidiaries pay directly to a taxing authority after the Issue Date; and
(B) the aggregate amount of the relevant tax that Parent or such other parent company actually owes to the appropriate taxing authority after the Issue Date;
provided further, however, that any Tax Payments received from the Company shall be paid over to the appropriate taxing authority within 30 days of Parent’s or such other parent company’s receipt of such Tax Payments or refunded to the Company.
“ Person ” means an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
“ Preferred Stock ” of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions or upon liquidation.
“ Priority Lien ” means any Lien granted by any Priority Lien Security Document to any Priority Lien Representative, at any time, upon any property of the Issuers or any other Grantor to secure Priority Lien Obligations.
“ Priority Lien After-Acquired Property ” means any property or assets (other than property or assets constituting the Collateral on the Issue Date) of the Company, Neff Rental or any future Restricted Subsidiary that is or becomes a Guarantor pursuant to Section 4.18 that secures any Priority Lien Obligations.
“Priority Lien Cap” means, as of any date, the principal amount outstanding under the ABL Credit Facility, together with the Indebtedness outstanding under any other Credit Facility that is secured by a Priority Lien, in an aggregate principal amount not to exceed the sum of the amount permitted to be incurred pursuant to clause (2) of the definition of “Permitted Indebtedness”, as of any date; plus $15,000,000, less the amount of Parity Junior Lien Debt incurred after the Issue Date pursuant to clause (2) or (13) of the definition of “Permitted Indebtedness” the net proceeds of which are used to Refinance Priority Lien Debt and for which there is a reduction in the commitments in respect of such
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Priority Lien Debt in an amount equal to the amount of such Parity Junior Lien Debt. For purposes of this definition, all letters of credit will be valued at the face amount thereof, whether or not drawn (but without duplication of the principal amount of any other Indebtedness), and all Interest Swap Obligations will be valued at zero.
“ Priority Lien Collateral ” means all Collateral (as defined in the ABL Credit Facility) and any other assets or property of the Company or any Grantor now or at any time hereafter subject to Liens securing any Priority Lien Obligations.
“ Priority Lien Collateral Agent” means the ABL Facility Agent and its successors, each in its capacity as Priority Lien Collateral Agent under the ABL Credit Facility and any other Person designated as a collateral agent with respect to any other Series of Priority Lien Debt; provided that, until the Discharge of Priority Lien Obligations in respect of the Obligations under the ABL Credit Facility has occurred, the ABL Facility Agent and its successors, each in its capacity as Priority Lien Collateral Agent under the ABL Credit Facility shall be the sole authorized Person to act as the Priority Lien Collateral Agent with respect to the Obligations under the ABL Credit Facility and each other Series of Priority Lien Debt unless otherwise determined by the ABL Facility Agent or such successor, the Company and the Required Priority Lien Debtholders at the time such other Series of Priority Lien Debt is incurred (such determination to be evidenced in the joinder in the form required under the Intercreditor Agreement to be executed and delivered in connection with the issuance of such Series of Priority Lien Debt).
“ Priority Lien Debt ” means:
(1) Indebtedness of the Issuers, Neff Rental or any other Guarantor under the ABL Credit Facility (to the extent such Indebtedness is not Refinanced with Parity Junior Lien Debt that would reduce the Priority Lien Cap) that was permitted to be incurred and secured under each applicable Secured Debt Document, which for purposes of this Indenture, shall be Indebtedness that is incurred under clause (2) or clause (13) of the definition of “Permitted Indebtedness”;
(2) Indebtedness of the Issuers, Neff Rental or any other Guarantor under any other Credit Facility that is secured equally and ratably (or on such other basis as may be agreed by the relevant holders of the Priority Lien Obligations) with the ABL Credit Facility by a Priority Lien that was permitted to be incurred and so secured under each applicable Secured Debt Document, which for purposes of this Indenture, shall be Indebtedness that is incurred under clause (2) or clause (13) of the definition of “Permitted Indebtedness”; provided that, in the case of any Indebtedness referred to in this clause (2), on or before the date on which such Indebtedness is incurred by the Issuers, Neff Rental or such other Guarantor, such Indebtedness is designated by the Company, in an Officer’s Certificate delivered to each Priority Lien Representative, the Priority Lien Collateral Agent and the Parity Junior Lien Collateral Agent, as “Priority Lien Debt” for the purposes of the Secured Debt Documents; provided that no Series of Secured Debt may be designated as both Parity Junior Lien Debt and Priority Lien Debt; and
(3) Interest Swap Obligations of the Issuers, Neff Rental or any other Guarantor that are incurred pursuant to clause (4) of the definition of “Permitted Indebtedness” and permitted to be incurred pursuant to the ABL Credit Facility and any other Priority Lien Documents; provided that:
(a) such Interest Swap Obligations are secured by a Priority Lien on all or substantially all of the assets and properties that secure Indebtedness under the Credit Facility in respect of which security for such Interest Swap Obligations was obtained; and
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(b) such Priority Lien is pari passu with the Priority Liens securing Indebtedness under the Credit Facility in respect of which security for such Interest Swap Obligations was obtained.
“ Priority Lien Document s” means the ABL Credit Facility and any other Credit Facility pursuant to which any Priority Lien Debt is incurred and the applicable Priority Lien Security Documents.
“ Priority Lien Obligations ” means the Priority Lien Debt and all other Obligations in respect of Priority Lien Debt.
“ Priority Lien Representative ” means (1) in the case of Priority Lien Collateral, each applicable Priority Lien Collateral Agent, (2) in the case of the ABL Credit Facility, the ABL Facility Agent or (3) in the case of any other Series of Priority Lien Debt, the trustee, agent or representative of the holders of such Series of Priority Lien Debt who maintains the transfer register for such Series of Priority Lien Debt and in the case of clause (3), (a) is appointed as a representative of the Priority Lien Debt (for purposes related to the administration of the applicable Priority Lien Security Documents) pursuant to a credit agreement or other agreement governing such Series of Priority Lien Debt and (b) has become a party to the Intercreditor Agreement by executing a joinder in the form required under the Intercreditor Agreement.
“ Priority Lien Security Documents ” means the Intercreditor Agreement, the Collateral Documents (as defined in the ABL Credit Facility), all security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements, documents, instruments or other grants or transfers for security executed and delivered by the Company, Neff Rental or any other Grantor creating (or purporting to create) a Priority Lien upon Collateral in favor of the Priority Lien Representatives, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms.
“ Private Placement Legend ” means the legend set forth in the Appendix to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
“ Productive Assets ” means assets (including Capital Stock) that are used or usable by the Company and its Restricted Subsidiaries in Permitted Businesses.
“ Purchase Agreement ” means (1) with respect to the Initial Notes issued on the Issue Date, the Purchase Agreement dated June 30, 2005, among the Issuers, Neff Rental and the Initial Purchaser, and (2) with respect to each issuance of Additional Notes, the purchase agreement or underwriting agreement among the Issuers, the Guarantors and the Persons purchasing such Additional Notes.
“ Qualified Capital Stock ” means any Capital Stock that is not Disqualified Capital Stock.
“ Qualified Securitization Transaction ” means any transaction or series of transactions that may be entered into by the Company or any of its Restricted Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to:
(1) a Securitization Entity (in the case of a transfer by the Company or any of its Restricted Subsidiaries); and
(2) any other Person (in the case of a transfer by a Securitization Entity),
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or may grant a security interest in any accounts receivable (whether now existing or arising or acquired in the future) of the Company or any of its Restricted Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets (including contract rights) which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable.
“ Quotation Agent ” means the Reference Treasury Dealer selected by the Trustee after consultation with the Company.
“ Recapitalization ” means the recapitalization of Parent consummated on June 3, 2005.
“ Recapitalization Agreement ” means the Recapitalization Agreement dated as of April 6, 2005, between Iron Merger Sub, Inc., a Delaware corporation, and Parent.
“ Receivables Fees ” means distributions or payments made directly or by means of discounts with respect to any participation interests issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Qualified Securitization Transaction.
“ Reference Treasury Dealer ” means Credit Suisse First Boston LLC and its successors and assigns and two other nationally recognized investment banking firms selected by the Company that are primary U.S. Government securities dealers.
“ Reference Treasury Dealer Quotations ” means with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day immediately preceding such redemption date.
“ Refinance ” means, in respect of any Indebtedness, to refinance, extend, renew, restructure, refund or replace (including by prepayment, redemption, defeasance or otherwise) or to issue other Indebtedness or commitments pursuant to which Indebtedness may be incurred in exchange or replacement for or in addition to such Indebtedness or any such commitments (whether or not any Indebtedness is outstanding thereunder and whether or not in connection therewith such Indebtedness or commitments are increased), in each case in whole or in part. “ Refinanced ” and “ Refinancing ” shall have correlative meanings.
“ Refinancing Indebtedness ” means any Refinancing, modification, replacement, restatement, refunding, deferral, extension, substitution, supplement, reissuance or resale of existing or future Indebtedness (other than intercompany Indebtedness), including any additional Indebtedness incurred to pay interest or premiums required by the instruments governing such existing or future Indebtedness as in effect at the time of issuance thereof (“ Required Premiums ”) and fees and expenses in connection therewith; provided, however, that:
(1) the incurrence of such Refinancing Indebtedness shall not directly or indirectly result in an increase in the aggregate principal amount of Indebtedness, except to the extent such increase is a result of a simultaneous incurrence of additional Indebtedness to pay Required Premiums, accrued interest and related fees and expenses;
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(2) such Refinancing Indebtedness shall not have a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred that is less than the Weighted Average Life to Maturity at such time of the Indebtedness being refinanced, modified, replaced, renewed, restated, refunded, deferred, extended, substituted, supplemented, reissued or resold;
(3) such Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being Refinanced; and
(4) if the Indebtedness being Refinanced is subordinated in right of payment to the Notes or the Guarantee of any Guarantor, as applicable, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the Guarantee of such Guarantor, as applicable, at least to the same extent as the Indebtedness being Refinanced; provided that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or its Restricted Subsidiaries solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis.
“ Registered Exchange Offer ” means the Registered Exchange Offer, as defined in the Registration Rights Agreement.
“ Registration Rights Agreement ” means (1) with respect to the Initial Notes issued on the Issue Date, the Registration Rights Agreement dated as of July 8, 2005, among the Issuers, Neff Rental and the Initial Purchaser and (2) with respect to each issuance of Additional Notes issued in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, among the Issuers, the Guarantors and the Persons purchasing such Additional Notes under the related Purchase Agreement.
“ Registration Statement ” means each Registration Statement as defined in the Registration Rights Agreement.
“ Related Party ” with respect to any Permitted Holder means:
(a) (1) any spouse, sibling, parent or child of such Permitted Holder; or
(2) the estate of any Permitted Holder during any period in which such estate holds Capital Stock of the Company for the benefit of any Person referred to in clause (a)(1); or
(b) any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, owners or Persons beneficially owning an interest of more than 50% of which consist of, or the sole managing partner or managing member of which is, one or more Permitted Holders or such other Persons referred to in the immediately preceding clause (a).
“ Required Priority Lien Debtholders ” means (1) with respect to the Obligations under the ABL Credit Facility, the “Required Lenders” under and as defined in the ABL Credit Facility (or any similar term in any subsequent ABL Credit Facility) and (2) with respect to all other Priority Lien Obligations, at any time, the holders of more than 50% of the sum of:
(A) the aggregate outstanding principal amount of Priority Lien Debt (including outstanding letters of credit whether or not then available or drawn); and
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(B) the aggregate unfunded commitments to extend credit which, when funded, would constitute Priority Lien Debt.
For purposes of this definition, (i) Priority Lien Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding and (ii) votes will be determined in accordance with the applicable documents governing such Priority Lien Debt.
“ Responsible Officer, ” when used with respect to the Trustee, means any officer within the Corporate Trust Administration division of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
“ Restricted Definitive Note ” means a Definitive Note bearing the Private Placement Legend.
“ Restricted Global Note ” means a Global Note bearing the Private Placement Legend.
“ Restricted Subsidiary ” of any Person means any Subsidiary of such Person which at the time of determination is not an Unrestricted Subsidiary.
“ Rule 144 ” means Rule 144 promulgated under the Securities Act.
“ Rule 144A ” means Rule 144A promulgated under the Securities Act.
“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.
“ Sale and Leaseback Transaction ” means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to the Company or a Restricted Subsidiary of the Company of any property, whether owned by the Company or any Restricted Subsidiary of the Company at the Issue Date or later acquired, which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are to be advanced by such Person on the security of such Property.
“ Sale of Collateral ” means any Asset Sale involving a sale or other disposition of Collateral.
“ SEC ” means the Securities and Exchange Commission.
“ Secured Debt ” means Parity Junior Lien Debt and Priority Lien Debt.
“ Secured Debt Documents ” means the Parity Junior Lien Documents and the Priority Lien Documents.
“ Secured Debt Representative ” means each Parity Junior Lien Representative and each Priority Lien Representative.
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“ Secured Obligations ” means the Parity Junior Lien Obligations and the Priority Lien Obligations.
“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“ Securitization Entity ” means any Person in which the Company or any Restricted Subsidiary of the Company makes an Investment and to which the Company or any Restricted Subsidiary of the Company transfers accounts receivable (and related assets including contract rights) which engages in no activities other than in connection with the financing of accounts receivable or related assets (including contract rights) and which is designated by the Board of Directors of the Company (as provided below) as a Securitization Entity:
(1) no portion of the Indebtedness or any other Obligations (contingent or otherwise) of which:
(a) is guaranteed by the Company or any Restricted Subsidiary of the Company (excluding guarantees of Obligations (other than the principal of, and interest on, Indebtedness)) pursuant to Standard Securitization Undertakings;
(b) is recourse to or obligates the Company or any Restricted Subsidiary of the Company in any way other than pursuant to Standard Securitization Undertakings; or
(c) subjects any property or asset of the Company or any Restricted Subsidiary of the Company, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;
(2) with which neither the Company nor any Restricted Subsidiary of the Company has any material contract, agreement, arrangement or understanding other than on terms no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company, other than fees payable in the ordinary course of business in connection with servicing receivables of such entity; and
(3) to which neither the Company nor any Restricted Subsidiary of the Company has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of the Company shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution of the Company giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing conditions.
“ Securitization Note ” means a promissory note of a Securitization Entity evidencing amounts owed to the Company or any Restricted Subsidiary of the Company in connection with a Qualified Securitization Transaction to a Securitization Entity, which note shall be repaid from cash available to the Securitization Entity other than amounts required to be established as reserves pursuant to agreements, amounts paid to investors in respect of interest and principal and amounts paid in connection with the purchase of newly generated receivables.
“ Senior Debt ” means the principal of, premium, if any, and interest (including any interest accruing subsequent to the commencement of an Insolvency or Liquidation Proceeding at the rate
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provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable law) on any Indebtedness of the Issuers or any Guarantor, whether outstanding on the Issue Date or thereafter created, incurred or assumed, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall be subordinated in right of payment to the Notes or the Guarantees of such Guarantor, as the case may be.
Notwithstanding the foregoing, “Senior Debt” shall not include:
(i) any Indebtedness of either of the Issuers or a Guarantor to either of the Issuers or to a Subsidiary of the Company (other than Finance Corp.);
(ii) any Indebtedness to, or guaranteed on behalf of, any director, officer or employee of the Company or any Subsidiary of the Company (including amounts owed for compensation);
(iii) any accounts payable, other liability or Indebtedness to trade creditors and other amounts incurred in connection with obtaining goods, materials or services;
(iv) Indebtedness represented by Disqualified Capital Stock;
(v) any liability for federal, state, local or other taxes owed or owing by the Company or any Guarantor;
(vi) that portion of any Indebtedness incurred in violation of Section 4.09 (but, as to any such obligation, no such violation shall be deemed to exist for purposes of this clause (vi) if the holder(s) of such obligation or their representative and the Trustee shall have received an Officer’s Certificate of the Company to the effect that the incurrence of such Indebtedness does not (or in the case of revolving credit indebtedness, that the incurrence of the entire committed amount thereof at the date on which the initial borrowing thereunder is made) would not violate such provisions of this Indenture);
(vii) Indebtedness which, when incurred and without respect to any election under Section 1111(b) of Title 11, United States Code, is without recourse to the Company; and
(viii) any Indebtedness which is, by its express terms, subordinated in right of payment to any other Indebtedness of the Company, any other Indebtedness of Finance Corp. or any other Indebtedness of any Guarantor.
Notwithstanding the foregoing, no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or its Restricted Subsidiaries solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis.
“ Senior Subordinated Notes ” means $80,000,000 aggregate original principal amount of the Issuers’ 13% Senior Subordinated Notes due 2013.
“ Senior Subordinated Note Indenture ” means, collectively, the indenture dated as of June 3, 2005, among Parent, Neff Rental and Wells Fargo Bank, National Association, as trustee thereunder, as amended and restated as of July 8, 2005, among the Issuers, Neff Rental and Wells Fargo Bank, National Association, as trustee thereunder, governing the Senior Subordinated Notes.
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“ Series of Parity Junior Lien Debt ” means, severally, the Notes and each other issue or series of Parity Junior Lien Debt for which a single transfer register is maintained.
“ Series of Priority Lien Debt ” means, severally, the Indebtedness outstanding under the ABL Credit Facility and any other Credit Facility pursuant to which any Grantor incurs Priority Lien Debt.
“ Series of Secured Debt ” means each Series of Parity Junior Lien Debt and each Series of Priority Lien Debt.
“ Shelf Registration Statement ” means the Shelf Registration Statement, as defined in the Registration Rights Agreement.
“ Significant Subsidiary ” with respect to any Person, means any Restricted Subsidiary of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1-02(w) of Regulation S-X under the Securities Act.
“ Spot Rate ” means, for any currency, the spot rate at which that currency is offered for sale against United States dollars, as determined by reference to the New York foreign exchange selling rates, as published in The Wall Street Journal on that date of determination for the immediately preceding business day or, if that rate is not available, as determined in any publicly available source of similar market data.
“ Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Company or any Subsidiary of the Company which are reasonably customary in a Qualified Securitization Transaction.
“ Stated Maturity ” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“ Stockholders Agreement ” means the stockholders agreement dated as of June 3, 2005, among Iron Merger Partnership, Parent, New York Life Capital Partners II, L.P., New York Life Investment Management Mezzanine Partners, LP, NYLIM Mezzanine Partners Parallel Fund, LP., J.C. Mas, JC Mas Holdings I, L.P. and each other stockholder of Parent as of June 3, 2005.
“ Subordinated Obligation ” means, with respect to a Person, any Indebtedness of such Person (whether outstanding on the Issue Date or thereafter incurred) which is subordinate or junior in right of payment to the Notes or a Guarantee of such Person, as the case may be, pursuant to a written agreement to that effect.
“ Subsidiary ” with respect to any Person, means:
(1) any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or indirectly, by such Person; or
(2) any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person.
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“ Tax Payment ” has the meaning assigned to such term in the definition of “Permitted Payments to Parent.”
“ TIA ” means the Trust Indenture Act of 1939, as amended, (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the Issue Date.
“ Total Assets ” means the total consolidated assets of the Company and its Restricted Subsidiaries, as set forth on the Company’s most recent consolidated balance sheet.
“ Transaction Date ” has the meaning specified in the definition of Consolidated Fixed Charge Coverage Ratio.
“ Transactions ” means the transactions contemplated by the Recapitalization Agreement, as in effect on June 3, 2005, including the related financings.
“ Trustee ” means Wells Fargo Bank, National Association until a successor replaces it and, thereafter, means the successor.
“ Uniform Commercial Code ” means the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in the State of New York; provided , that to the extent that the Uniform Commercial Code is used to define any term herein or in any Note Document and such term is defined differently in different Articles of the Uniform Commercial Code, the definition of such term contained in Article 9 shall govern; provided further , that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, the Lien of the Parity Junior Lien Collateral Agent or any holder of Secured Obligations on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “Uniform Commercial Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.
“ Unrestricted Global Note ” means a permanent global Note in the form of Exhibit A attached hereto that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing a series of Notes that do not bear the Private Placement Legend.
“ Unrestricted Subsidiary ” of any Person means:
(1) any Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board of Directors of such Person in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary (other than Finance Corp. and Neff Rental) (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided that:
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(1) the Company certifies to the Trustee that such designation complies with Section 4.07; and
(2) each Subsidiary to be so designated and each of its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any of its Restricted Subsidiaries.
The Board of Directors of the Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if (x) immediately after giving effect to such designation, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.09 and (y) immediately before and immediately after giving effect to such designation, no Default shall have occurred and be continuing. Any such designation by the Board of Directors of the Company shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing provisions.
“ U.S. Person ” means a U.S. person as defined in Rule 902(k) under the Securities Act.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(1) the then outstanding aggregate principal amount of such Indebtedness into
(2) the sum of the total of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof by
(b) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment.
“ Wholly Owned Restricted Subsidiary ” of any Person means any Wholly Owned Subsidiary of such Person which at the time of determination is a Restricted Subsidiary.
“ Wholly Owned Subsidiary ” of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than in the case of a Restricted Subsidiary that is incorporated in a jurisdiction other than a State in the United States or the District of Columbia, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) are owned by such Person or any Wholly Owned Subsidiary of such Person.
SECTION 1.02. Other Definitions .
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SECTION 1.03. Trust Indenture Act Definitions .
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
“ indenture securities ” means the Notes and the Guarantees;
“ indenture security holder ” means a Holder of a Note;
“ indenture to be qualified ” means this Indenture;
“ indenture trustee ” or “institutional trustee” means the Trustee; and
“ obligor ” on the Notes and the Guarantees means the Issuers and the Guarantors, respectively, and any successor obligor upon the Notes and the Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
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SECTION 1.04. Rules of Construction .
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;(3) “or” is not exclusive;(4) words in the singular include the plural, and in the plural include the singular;(5) “including” means including without limitation;(6) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness;(7) secured Indebtedness shall not be deemed to be subordinate or junior to any other secured Indebtedness merely because it has a junior priority with respect to the same collateral;(8) the principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the issuer of such security dated such date prepared in accordance with GAAP;(9) the principal amount of any Preferred Stock shall be (A) the maximum liquidation value of such Preferred Stock or (B) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater;(10) provisions apply to successive events and transactions; and(11) references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time.ARTICLE 2THE NOTESSECTION 2.01. Form and Dating .
Provisions relating to the Initial Notes, the Private Exchange Notes and the Exchange Notes are set forth in the Rule 144A/Regulation S/IAI Appendix attached hereto (the “ Appendix ”) which is hereby incorporated in, and expressly made part of, this Indenture. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A, which is hereby incorporated in and expressly made a part of, this Indenture. The Notes may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the Issuers are subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Issuers). Each Note shall be dated the date of its authentication. The terms of the Notes set forth in the Appendix and Exhibit A are part of the terms of this Indenture.
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SECTION 2.02. Execution and Authentication .
One Officer shall sign the Notes for each of the Issuers by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
On the Issue Date, the Trustee shall authenticate and deliver $245.0 million of the Issuers’ 11¼% Second Priority Senior Secured Notes Due 2012 and, at any time and from time to time thereafter, the Trustee shall authenticate and deliver Notes for original issue in an aggregate principal amount specified in by the Issuers, in each case upon a written order of the Issuers in the form of an Officer’s Certificate. Each such written order shall specify the amount of Notes to be authenticated, whether the Notes are to be issued as Definitive Notes or Global Notes, the date on which the original issue of Notes is to be authenticated and, in the case of an issuance of Additional Notes pursuant to Section 2.13 after the Issue Date, shall certify that such issuance is in compliance with Sections 4.09 and 4.12 and such other information as the Trustee shall reasonably request.
The Notes shall be issued only in fully registered form, without coupons and only in minimum denominations of $2,000 and any integral multiple of $1,000 thereafter. All Notes issued under this Indenture shall vote and consent together on all matters as one class and no series of Notes will have the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuers.
SECTION 2.03. Registrar and Paying Agent .
The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”) and an office or agency where Notes may be presented for payment (“ Paying Agent ”) and an office or agency where notices and demands to or upon the Issuers in respect of the Notes, this Indenture and the Note Security Documents may be served, which shall be in the Borough of Manhattan, The City of New York. The Registrar shall keep a register of the Notes and of their transfer and exchange. Such register shall be in written form or any other form capable of being converted into written form within a reasonable time. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “ Registrar ” includes any co-registrar and the term “ Paying Agent ” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its domestic Subsidiaries may act as Paying Agent or Registrar.
The Issuers initially appoint The Depository Trust Company (“ DTC ”) to act as Depositary with respect to any Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar and Paying Agent and to act as Note Custodian with respect to any Global Notes.
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SECTION 2.04. Paying Agent to Hold Money in Trust .
The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest (including Additional Interest, if any) on the Notes, and will notify the Trustee of any default by the Issuers in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuers at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to any Issuer or any Significant Subsidiary, the Trustee shall serve as Paying Agent for the Notes.
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