In addition, H&E will not, directly or indirectly, lease all or substantially all of the
properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
This Merger, Consolidation or Sale of Assets covenant will not apply to:
(1) a merger of H&E with an Affiliate solely for the purpose of reincorporating H&E in another jurisdiction; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or
among H&E and its Restricted Subsidiaries.
Transactions with Affiliates
H&E will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of
H&E (each, an
Affiliate Transaction
), unless:
(1) the Affiliate Transaction is on terms
that, when taken as a whole, are not materially less favorable to H&E or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by H&E or such Restricted Subsidiary with an unrelated Person;
and
(2) H&E delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $25.0 million, a resolution of the Board of Directors of H&E set forth in an officers certificate delivered to the Trustee certifying that such Affiliate Transaction complies with
this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of H&E.
The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior
paragraph:
(1) any employment agreement, employee benefit plan, indemnification agreement or arrangement for directors,
officers, employees, agents and consultants, stock option, stock repurchase agreement, consulting agreement, severance agreement, insurance plan or any similar agreement, plan or arrangement entered into by H&E or any of its Restricted
Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between or among H&E
and/or its Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of H&E) that
is an Affiliate of H&E solely because H&E owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable directors fees;
provided
that the aggregate fees paid or payable in any calendar year to
any director who is an Affiliate of H&E in a capacity other than as a director of H&E shall not be greater than the aggregate fees paid or payable in such year to any other director who is not otherwise an Affiliate of H&E;
(5) any issuance of Equity Interests (other than Disqualified Stock) of H&E to Affiliates, directors, officers or employees
of H&E or its Restricted Subsidiaries or to holders of Equity Interests in H&E;
(6) Restricted Payments and
Permitted Investments that do not violate the provisions of the indenture described above under the caption Restricted Payments;
(7) customary loans and advances paid to officers, directors, employees or consultants of H&E or any of its Restricted
Subsidiaries;
(8) transactions pursuant to the Affiliate Agreements as all were in effect on the date of the indenture or
as the same may be amended, modified or replaced from time to time so long as any such amendment,
62