INTERCREDITOR AGREEMENTIntercreditor Agreement |
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EXHIBIT 10.3
EXECUTION COPY
INTERCREDITOR AGREEMENT
dated as of July 8, 2005
among
NEFF RENTAL LLC,
NEFF FINANCE CORP.,
NEFF RENTAL, INC.,
THE OTHER GRANTORS FROM TIME TO TIME PARTY HERETO,
GENERAL ELECTRIC CAPITAL CORPORATION,
as Credit Agreement Agent under the Credit Agreement and
Priority Lien Collateral Agent under the Priority Lien Collateral Documents,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee and Parity Junior Lien Collateral Agent under the Indenture
THIS IS THE INTERCREDITOR AGREEMENT REFERRED TO IN (A) THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JULY 8, 2005, AMONG NEFF RENTAL LLC, NEFF FINANCE CORP., NEFF RENTAL, INC., THE OTHER CREDIT PARTIES FROM TIME TO TIME PARTY THERETO, THE LENDERS FROM TIME TO TIME PARTY THERETO AND GENERAL ELECTRIC CAPITAL CORPORATION, AS AGENT, (B) THE INDENTURE DATED AS OF JULY 8, 2005, AMONG NEFF RENTAL LLC, NEFF FINANCE CORP., NEFF RENTAL, INC., THE OTHER GUARANTORS FROM TIME TO TIME PARTY THERETO AND WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE, (C) THE INTERCREDITOR AGREEMENT DATED AS OF JUNE 3, 2005, AMONG NEFF CORP., NEFF RENTAL, INC., THE OTHER CREDIT PARTIES THERETO, GENERAL ELECTRIC CAPITAL CORPORATION, AS FIRST LIEN AGENT, AND CREDIT SUISSE, AS SECOND LIEN AGENT, AS THE “SUCCESSOR INTERCREDITOR AGREEMENT” AND (D) THE OTHER COLLATERAL DOCUMENTS REFERRED TO IN THE CREDIT DOCUMENTS REFERRED TO HEREIN.
TABLE OF CONTENTS
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SECTION 2.6. Restrictions on Enforcement of Parity Junior Liens |
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SECTION 2.12. Bailment and Sub-Agency for Perfection of Certain Security Interests |
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INTERCREDITOR AGREEMENT dated as of July 8, 2005 (together with each Intercreditor Agreement Joinder, this “Agreement”), among NEFF RENTAL LLC, a Delaware limited liability company (“Neff LLC”), NEFF FINANCE CORP., a Delaware corporation (“Finance Corp.” and, together with Neff LLC, “Holdings”), NEFF RENTAL, INC., a Florida corporation (“Neff Rental”), the Grantors (as defined below) from time to time party hereto, GENERAL ELECTRIC CAPITAL CORPORATION (“GECC”), as Credit Agreement Agent (in such capacity and together with its successors in such capacity, the “Credit Agreement Agent”) and as collateral agent for the Priority Lien Lenders (as defined below) and the other Secured Parties (as defined in the Credit Agreement (as defined below)) (in such capacity and together with its successors in such capacity, the “Priority Lien Collateral Agent”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as Trustee (in such capacity and together with its successors in such capacity, the “Trustee”) and as collateral agent for the holders of the Notes (as defined below) (in such capacity and together with its successors in such capacity, the “Parity Junior Lien Collateral Agent”).
PRELIMINARY STATEMENT
Reference is made to (a) the Amended and Restated Credit Agreement dated as of July 8, 2005 (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, the “Credit Agreement”), among Holdings, Neff Rental, the other Grantors from time to time party thereto, the lenders from time to time party thereto (the “Priority Lien Lenders”) and GECC, as Credit Agreement Agent, (b) the Indenture dated as of July 8, 2005 (as amended, extended, renewed, restated, supplemented or otherwise modified (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any Refinancing (as defined below) thereof, whether in whole or in part, or a successor indenture, whether by the same or any other holders or trustee or group of holders and whether by the same trustee or a different trustee, the “Indenture”), among Holdings, Neff Rental, the other Guarantors (as defined in the Indenture) from time to time party thereto, and Wells Fargo, as Trustee, (c) the Priority Lien Documents (such term and each other capitalized term used in this Agreement having the meaning given it in Article I) and (d) the Parity Junior Lien Documents.
RECITALS
A. The Priority Lien Lenders agreed to make loans to Neff Rental pursuant to the Credit Agreement, upon, among other terms and conditions, the condition that the Priority Lien Obligations under the Credit Agreement shall be secured by first priority Liens on, and security interests in, the Collateral.
B. The holders of the Note Obligations have agreed to purchase the Notes issued pursuant to the Indenture, which Notes shall be secured by Parity Junior Liens on, and security interests in, the Collateral.
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C. The Credit Agreement and the Indenture require, among other things, that the parties thereto set forth in this Agreement, among other things, their respective rights, obligations and remedies with respect to the Collateral.
D. The parties hereto desire to provide that future secured creditors of Holdings, Neff Rental and any other Grantors may become party to, and have their respective Liens and security interests governed by, the provisions of this Agreement in accordance with all applicable Secured Debt Documents.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; PRINCIPLES
OF CONSTRUCTION
SECTION 1.1. Defined Terms. As used in this
Agreement, the following terms shall have the meanings specified below:
“Additional Secured Debt” has the meaning set forth in Section 3.2(a).
“Affiliate” has the meaning specified in the Indenture.
“Agents” means the Priority Lien Collateral Agent and the Parity Junior Lien Collateral Agent.
“Agreement” has the meaning assigned to such term in the preamble to this Agreement.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereinafter in effect, or any successor statute.
“Bankruptcy Law” means the Bankruptcy Code and any other similar Federal, state or foreign bankruptcy, insolvency or receivership law.
“Capital Stock” has the meaning assigned to such term in the Indenture in effect on the date hereof (or any similar term in any subsequent 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.
“Collateral” means, collectively, the Priority Lien Collateral and the Parity Junior Lien Collateral.
“Credit Agreement” has the meaning set forth in the preliminary statement.
“Credit Agreement Agent” means, at any time, the Person serving at such time as the “Agent” or “Administrative Agent” under the Credit Agreement or any other representative then
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most recently designated in accordance with the applicable provisions of the Credit Agreement, together with its successors in such capacity.
“Credit Documents” means the Priority Lien Documents and the Parity Junior Lien Documents.
“Credit Facilities” means (1) the Credit Agreement 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.
“DIP Financing” has the meaning set forth in Section 5.1(a)(2).
“DIP Financing Liens” has the meaning set forth in Section 5.1(a)(2).
“Discharge of Priority Lien Obligations” means, subject to Section 6.25, the occurrence of all of the following:
(a)
termination or expiration of all
commitments to extend credit that would constitute Priority Lien Debt;
(b)
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);
(c)
discharge or cash collateralization (to
the extent of any letters of credit constituting Priority Lien Debt (i) in
the case of the Credit Agreement, in the manner and pursuant to the procedures
specified in the Credit Agreement or if not so specified at 105% of the aggregate
undrawn amount and (ii) 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
(d)
payment in full in cash of all other
Priority Lien Obligations that are then 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).
“Disposition” means any sale, lease, rental, exchange, transfer, conveyance, license or other disposition. “Dispose” shall have a correlative meaning.
“Finance Corp.” has the meaning assigned to such term in the preamble to this Agreement.
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“GECC” has the meaning assigned to such term in the preamble to this Agreement.
“Grantors” means Holdings, Neff Rental and each 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.
“Holdings” has the meaning assigned to such term in the preamble to this Agreement.
“Indebtedness” means and includes all obligations that constitute Indebtedness as defined in the Indenture as in effect on the date of this Agreement.
“Indenture” has the meaning set forth in the preliminary statement.
“Insolvency or Liquidation Proceeding” means (a) any voluntary or involuntary proceeding under the Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor, (b) 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, (c) any voluntary or involuntary winding-up or liquidation of any Grantor or (d) a general assignment for the benefit of creditors by any Grantor.
“Intercreditor Agreement Joinder” means an agreement substantially in the form of Exhibit A.
“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.
“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 UCC or comparable law of any jurisdiction).
“Neff LLC” has the meaning assigned to such term in the preamble to this Agreement.
“Neff Rental” has the meaning set forth in the preamble to this Agreement.
“Note Documents” means the Indenture, the Notes and the Note Security Documents.
“Note Obligations” means the Notes and all other Obligations in respect thereof.
“Note Security Documents” has the meaning specified in the Indenture.
“Notes” means all 11¼% Second Priority Senior Secured Notes due 2012 issued under the Indenture.
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“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.
“Officer’s Certificate” means a certificate with respect to compliance with a condition or covenant provided for in this Agreement, signed on behalf of Neff LLC, Finance Corp. or Neff Rental, as applicable, by one officer of Neff LLC, Finance Corp. or Neff Rental, who must be the Chairman of the Board, the President, any Vice-President, the Treasurer or the Secretary of Neff LLC, Finance Corp. or Neff Rental, as applicable, including:
(a)
a statement that the Person making such
certificate has read such condition or covenant;
(b)
a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate are based;
(c)
a statement that, in the opinion of
such Person, he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to whether or
not such condition or covenant has been satisfied; and
(d)
a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been satisfied.
“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 Holdings or any other Grantor to secure Parity Junior Lien Obligations.
“Parity Junior Lien Collateral” means all Collateral (as defined in the Indenture) and any other assets or property of Holdings or any other Grantor now or at any time hereafter subject to Liens securing any Parity Junior Lien Obligations.
“Parity
Junior Lien Collateral Agent” means Wells Fargo and its
successors as collateral agent under the 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 the 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:
(a)
the Notes, which Notes (whether issued
on the date hereof or in the future) shall be treated as a single class or
Series for all purposes of this Agreement; and
(b)
any other Indebtedness of Holdings or
any other Grantor 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
(i) if incurred by Holdings, guaranteed by each Restricted Subsidiary of
Neff LLC that, on the date of incurrence of such Indebtedness, is a Guarantor
(as defined in the Indenture) or (ii) if incurred by Neff LLC or Finance
Corp. or any other Grantor, guaranteed by Finance Corp. or Neff LLC, as applicable,
and each Restricted Subsidiary of Neff LLC that, on the date of incurrence of
such Indebtedness, is a Guarantor (as defined in the Indenture); provided,
further, in the case of any Indebtedness referred to in this clause (b),
that on or before the date on which such Indebtedness is incurred by Holdings,
Neff Rental or such other Grantor, such Indebtedness is designated by Neff LLC,
in an Officer’s Certificate delivered to each Parity Junior Lien
Representative and the Priority Lien Collateral Agent, as “Parity Junior
Lien Debt” for the purposes of the Indenture and this 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 the related Parity Junior Lien Security Documents.
“Parity Junior Lien Obligations” means the Parity Junior Lien Debt and all Obligations in respect of Parity Junior Lien Debt.
“Parity Junior Lien Permitted Actions” has the meaning set forth in Section 2.6(b).
“Parity Junior Lien Representative” means:
(a)
in the case of the Notes, the Parity
Junior Lien Collateral Agent; and
(b)
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 (i) is appointed 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 (ii) has become a
party to this Agreement by executing an Intercreditor Agreement Joinder.
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“Parity Junior Lien Secured Party” means, at any time, each holder of Parity Junior Lien Obligations and their successors and assigns.
“Parity Junior Lien Security Documents” means this 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, the Indenture and this Agreement.
“Permitted Liens” has the meaning specified in the Indenture.
“Person” or “person” means an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, governmental agency or political subdivision thereof.
“Pledged or Controlled Collateral” has meaning set forth in Section 2.12(a).
“Priority Lien” means any Lien granted by any Priority Lien Security Document to any Priority Lien Representative, at any time, upon any property of Holdings or any other Grantor to secure Priority Lien Obligations.
“Priority Lien Cap” means, as of any date, the principal amount outstanding under the Credit Agreement, 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” in the Indenture, as of any date, plus $15,000,000, less the amount of Parity Junior Lien Debt incurred after the date of the Credit Agreement pursuant to clause (2) or (13) of the definition of “Permitted Indebtedness” in the Indenture 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 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 Credit Agreement) and any other assets or property of Holdings or any other Grantor now or at any time hereafter subject to Liens securing any Priority Lien Obligations.
“Priority Lien Collateral Agent” means the Credit Agreement Agent and its successors, each in its capacity as Priority Lien Collateral Agent under the Credit Agreement 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 Credit Agreement has occurred, the Credit Agreement Agent and its successors, each in its capacity as Priority Lien Collateral Agent under the Credit Agreement shall be the sole authorized Person to act as the Priority Lien Collateral Agent with respect to the Obligations
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under the Credit Agreement and each other Series of Priority Lien Debt unless otherwise determined by the Credit Agreement Agent or such successor, Holdings 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 Intercreditor Agreement Joinder executed and delivered in connection with the issuance of such Series of Priority Lien Debt).
“Priority Lien Debt” means:
(a)
Indebtedness of Holdings, Neff Rental
or any other Grantor under the Credit Agreement (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 the Indenture, shall be
Indebtedness that is incurred under clause (2) or clause (13) of
the definition of “Permitted Indebtedness” in the Indenture;
(b)
Indebtedness of Holdings, Neff Rental
or any other Grantor 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 Credit Agreement by a Priority Lien
that was permitted to be incurred and so secured under each applicable Secured
Debt Document, which for purposes of the Indenture, shall be Indebtedness that
is incurred under clause (2) or clause (13) of the definition of
“Permitted Indebtedness” in the Indenture; provided, that,
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 Holdings, Neff Rental
or such other Grantor, such Indebtedness is designated by Neff LLC 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
(c)
Interest Swap Obligations of Holdings,
Neff Rental or any other Grantor that are incurred pursuant to
clause (4) of the definition of “Permitted Indebtedness”
in the Indenture and permitted to be incurred under the Credit Agreement and
any other Priority Lien Documents; provided, that:
(i) 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
(ii) 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.
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“Priority Lien Documents” means the Credit Agreement and any other Credit Facility pursuant to which any Priority Lien Debt is incurred and the applicable Priority Lien Security Documents.
“Priority Lien Lenders” has the meaning set forth in the preliminary statement.
“Priority Lien Obligations” means the Priority Lien Debt and all other Obligations in respect of Priority Lien Debt.
“Priority Lien Representative” means:
(a)
in the case of Priority Lien
Collateral, each applicable Priority Lien Collateral Agent;
(b)
in the case of the Credit Agreement,
the Credit Agreement Agent; and
(c)
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 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 who has
executed an Intercreditor Agreement Joinder.
“Priority Lien Secured Party” means, at any time, (a) each Secured Party (as defined in the Credit Agreement), (b) each other person to whom any of the Priority Lien Obligations (including indemnification obligations) is owed and (c) the successors and assigns of each of the foregoing.
“Priority Lien Security Documents” means this Agreement, the Collateral Documents (as defined in the Credit Agreement), 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 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.
“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.
“Release” shall have the meaning assigned to such term in Section 2.9(a).
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“Required Parity Junior Lien Debtholders” means, at any time, (a) with respect to the Note Obligations, as determined in accordance with the Indenture and (b) with respect to all other Parity Junior Lien Obligations, at any time, the holders of more than 50% of the sum of: