EXECUTION COPY
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GROVE INVESTORS LLC
GROVE INVESTORS CAPITAL, INC.
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141/2% SENIOR DEBENTURES DUE 2010
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INDENTURE
DATED AS OF APRIL 29, 1998
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UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
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CROSS-REFERENCE TABLE*
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.03
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.03
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06; 11.02
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.03; 11.02
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.02
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.05
(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . NA
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.05, 11.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.12; 2.13
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.01
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11.01
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N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE. . . . . . . . . . . . 1
Section 1.01. Definitions.. . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions.. . . . . . . . . . . . . . . . . . . .19
Section 1.03. Trust Indenture Act Terms.. . . . . . . . . . . . . . . .19
Section 1.04. Rules of Construction.. . . . . . . . . . . . . . . . . .20
ARTICLE 2. THE DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . . .21
Section 2.01. Form and Dating.. . . . . . . . . . . . . . . . . . . . .21
Section 2.02. Execution and Authentication. . . . . . . . . . . . . . .22
Section 2.03. Registrar and Paying Agent. . . . . . . . . . . . . . . .22
Section 2.04. Paying Agent to Hold Money in Trust.. . . . . . . . . . .23
Section 2.05. Holder Lists. . . . . . . . . . . . . . . . . . . . . . .23
Section 2.06. Transfer and Exchange.. . . . . . . . . . . . . . . . . .23
Section 2.07. Replacement Debentures. . . . . . . . . . . . . . . . . .36
Section 2.08. Outstanding Debentures. . . . . . . . . . . . . . . . . .36
Section 2.09. Treasury Debentures.. . . . . . . . . . . . . . . . . . .36
Section 2.10. Temporary Debentures. . . . . . . . . . . . . . . . . . .36
Section 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . .37
Section 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . .37
Section 2.13. Record Date.. . . . . . . . . . . . . . . . . . . . . . .37
Section 2.14. Computation of Interest.. . . . . . . . . . . . . . . . .37
Section 2.15. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . .37
ARTICLE 3. REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . .38
Section 3.01. Notices to Trustee. . . . . . . . . . . . . . . . . . . .38
Section 3.02. Selection of Debentures to Be Redeemed. . . . . . . . . .38
Section 3.03. Notice of Redemption. . . . . . . . . . . . . . . . . . .38
Section 3.04. Effect of Notice of Redemption. . . . . . . . . . . . . .39
Section 3.05. Deposit of Redemption Price.. . . . . . . . . . . . . . .39
Section 3.06. Debentures Redeemed in Part.. . . . . . . . . . . . . . .40
Section 3.07. Optional Redemption.. . . . . . . . . . . . . . . . . . .40
Section 3.08. Mandatory Redemption. . . . . . . . . . . . . . . . . . .40
ARTICLE 4. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
Section 4.01. Payment of Debentures.. . . . . . . . . . . . . . . . . .40
Section 4.02. Maintenance of Office or Agency.. . . . . . . . . . . . .41
Section 4.03. Reports.. . . . . . . . . . . . . . . . . . . . . . . . .41
Section 4.04. Compliance Certificate. . . . . . . . . . . . . . . . . .42
Section 4.05. Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . .42
Section 4.06. Stay, Extension and Usury Laws. . . . . . . . . . . . . .43
Section 4.07. Restricted Payments.. . . . . . . . . . . . . . . . . . .43
Section 4.08. Limitation on Leases. . . . . . . . . . . . . . . . . . .46
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Section 4.09. Incurrence of Indebtedness and Issuance of
Disqualified Stock . . . . . . . . . . . . . . . . . . .46
Section 4.10. Transactions with Affiliates. . . . . . . . . . . . . . .49
Section 4.11. Liens.. . . . . . . . . . . . . . . . . . . . . . . . . .49
Section 4.12. Corporate Existence.. . . . . . . . . . . . . . . . . . .49
Section 4.13. Offer to Repurchase Upon Change of Control. . . . . . . .50
Section 4.14. Sales of Accounts Receivable. . . . . . . . . . . . . . .51
Section 4.15. Sale and Leaseback Transactions.. . . . . . . . . . . . .51
Section 4.16. Restriction on Preferred Stock of Subsidiaries. . . . . .52
Section 4.17. Restrictions on Activities of Grove Investors Capital.. .52
Section 4.18. Payments for Consent. . . . . . . . . . . . . . . . . . .52
ARTICLE 5. SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . . . .52
Section 5.01. Merger, Consolidation or Sale of Assets.. . . . . . . . .52
Section 5.02. Successor Corporation Substituted.. . . . . . . . . . . .53
ARTICLE 6. DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . .53
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . .53
Section 6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . .55
Section 6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . .55
Section 6.04. Waiver of Past Defaults.. . . . . . . . . . . . . . . . .56
Section 6.05. Control by Majority.. . . . . . . . . . . . . . . . . . .56
Section 6.06. Limitation on Suits.. . . . . . . . . . . . . . . . . . .56
Section 6.07. Rights of Holders of Debentures to Receive Payment. . . .57
Section 6.08. Collection Suit by Trustee. . . . . . . . . . . . . . . .57
Section 6.09. Trustee May File Proofs of Claim. . . . . . . . . . . . .57
Section 6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . .57
Section 6.11. Undertaking for Costs.. . . . . . . . . . . . . . . . . .58
ARTICLE 7. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
Section 7.01. Duties of Trustee.. . . . . . . . . . . . . . . . . . . .58
Section 7.02. Rights of Trustee.. . . . . . . . . . . . . . . . . . . .59
Section 7.03. Individual Rights of Trustee. . . . . . . . . . . . . . .60
Section 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . .60
Section 7.05. Notice of Defaults. . . . . . . . . . . . . . . . . . . .60
Section 7.06. Reports by Trustee to Holders of the Debentures.. . . . .61
Section 7.07. Compensation and Indemnity. . . . . . . . . . . . . . . .61
Section 7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . .62
Section 7.09. Successor Trustee by Merger, etc. . . . . . . . . . . . .63
Section 7.10. Eligibility; Disqualification.. . . . . . . . . . . . . .63
Section 7.11. Preferential Collection of Claims Against Issuers.. . . .63
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . . . .63
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . . . . .63
Section 8.02. Legal Defeasance and Discharge. . . . . . . . . . . . . .64
Section 8.03. Covenant Defeasance.. . . . . . . . . . . . . . . . . . .64
Section 8.04. Conditions to Legal or Covenant Defeasance. . . . . . . .64
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Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions . . . . . . . . . .66
Section 8.06. Repayment to Issuers. . . . . . . . . . . . . . . . . . .66
Section 8.07. Reinstatement.. . . . . . . . . . . . . . . . . . . . . .66
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER. . . . . . . . . . . . . . . . .67
Section 9.01. Without Consent of Holders of Debentures. . . . . . . . .67
Section 9.02. With Consent of Holders of Debentures.. . . . . . . . . .68
Section 9.03. Compliance with Trust Indenture Act.. . . . . . . . . . .69
Section 9.04. Revocation and Effect of Consents.. . . . . . . . . . . .69
Section 9.05. Notation on or Exchange of Debentures.. . . . . . . . . .69
Section 9.06. Trustee to Sign Amendments, etc.. . . . . . . . . . . . .69
ARTICLE 10. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . .70
Section 10.01. Trust Indenture Act Controls.. . . . . . . . . . . . . .70
Section 10.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . .70
Section 10.03. Communication by Holders of Debentures with Other
Holders of Debentures. . . . . . . . . . . . . . . . . .71
Section 10.04. Certificate and Opinion as to Conditions Precedent . . .71
Section 10.05. Statements Required in Certificate or Opinion. . . . . .71
Section 10.06. Rules by Trustee and Agents. . . . . . . . . . . . . . .72
Section 10.07. No Personal Liability of Directors, Officers,
Employees, Members and Stockholders. . . . . . . . . . .72
Section 10.08. Governing Law. . . . . . . . . . . . . . . . . . . . . .72
Section 10.09. No Adverse Interpretation of Other Agreements. . . . . .72
Section 10.10. Successors . . . . . . . . . . . . . . . . . . . . . . .72
Section 10.11. Severability . . . . . . . . . . . . . . . . . . . . . .72
Section 10.12. Counterpart Originals. . . . . . . . . . . . . . . . . .73
Section 10.13. Table of Contents, Headings, etc.. . . . . . . . . . . .73
EXHIBITS
EXHIBIT A FORM OF DEBENTURE
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
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INDENTURE dated as of April 29, 1998 by and among Grove Investors LLC,
a Delaware limited liability company ("GROVE INVESTORS"), Grove Investors
Capital, Inc., a Delaware corporation ("GROVE INVESTORS CAPITAL", and together
with Grove Investors, the "ISSUERS") and United States Trust Company of New
York, as trustee (the "TRUSTEE").
The Issuers and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 14
1/2% Senior Debentures due 2010 (the "SENIOR DEBENTURES") and the 14 1/2% New
Senior Debentures due 2010 (the "NEW SENIOR DEBENTURES" and, together with
the Senior Debentures, the "DEBENTURES"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A GLOBAL DEBENTURE" means a global Debenture in the form of
Exhibit A-1 hereof bearing the Global Debenture Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Debentures sold in reliance on Rule 144A.
"ACCOUNTS RECEIVABLE SUBSIDIARY" means a Wholly Owned Subsidiary of
Grove Investors (i) which is formed solely for the purpose of, and which
engages in no activities other than activities in connection with, financing
accounts receivable and/or Debentures receivable and related assets of Grove
Investors and/or its Restricted Subsidiaries, (ii) which is designated by the
Management Committee of Grove Investors as an Accounts Receivables Subsidiary
pursuant to a Management Committee resolution set forth in an Officers'
Certificate and delivered to the Trustee, (iii) that has total assets at the
time of such designation with a book value not exceeding $100,000 PLUS the
reasonable fees and expenses required to establish such Accounts Receivable
Subsidiary and any accounts receivable financing, (iv) no portion of
Indebtedness or any other obligation (contingent or otherwise) of which (a)
is at any time recourse to or obligates Grove Investors or any Restricted
Subsidiary of Grove Investors in any way, other than pursuant to (I)
representations and covenants entered into in the ordinary course of business
in connection with the sale of accounts receivable and/or Debentures
receivable to such Accounts Receivable Subsidiary or (II) any guarantee of
any such accounts receivable financing by Grove Investors that is permitted
to be incurred pursuant to Section 4.09 hereof, or (b) subjects any property
or asset of Grove Investors or any Restricted Subsidiary of Grove Investors,
directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to (I) representations and covenants entered
into in the ordinary course of business in connection with sales of accounts
receivable and/or Debentures receivable or (II) any guarantee of any such
accounts receivable financing by Grove Investors that is permitted to be
incurred pursuant to Section 4.09 hereof, (v) with which neither Grove
Investors nor any Restricted Subsidiary of Grove Investors has any contract,
agreement, arrangement or understanding other than contracts, agreements,
arrangements and understandings entered into in the ordinary course of
business in connection with sales of accounts receivable and/or Debentures
receivable in accordance with Section 4.14 hereof and fees payable in the
ordinary course of business in connection with servicing accounts receivable
and/or Debentures receivable and (vi) with respect to which neither Grove
Investors nor any Restricted Subsidiary of Grove Investors has any obligation
(a) to subscribe for additional shares of Capital Stock or other Equity
Interests therein or make any additional capital contribution or similar
payment or transfer thereof other than in connection with the sale of
accounts receivable and/or Debentures receivable to such Accounts Receivable
Subsidiary in
accordance with Section 4.14 hereof or (b) to maintain or preserve solvency or
any balance sheet item, financial condition, level of income or results of
operations thereof.
"ACQUIRED DEBT" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"AFFILIATE" of any specified Person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of beneficial interests in a Global Debenture, the rules and procedures
of the Depositary, Euroclear and Cedel that apply to such transfer and exchange.
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) other than (A) in the ordinary course of business or (B)
sales or other dispositions of accounts receivable and/or Debentures receivable
and related assets to (x) the Accounts Receivable Subsidiary in accordance with
Section 4.14 hereof and (y) one or more financial institutions in connection
with a Dealer Financing Program or factoring arrangements as in existence on the
date of this Indenture (PROVIDED that, in each case, the sale, lease, conveyance
or other disposition of all or substantially all of the assets of Grove
Investors and its Subsidiaries (determined on a consolidated basis) will be
governed by Section 4.13 and/or Section 4.08 hereof and (ii) the issue or sale
by Grove Investors or any of its Subsidiaries of Equity Interests of any of
Grove Investors' Subsidiaries, in the case of either clause (i) or (ii), whether
in a single transaction or a series of related transactions (a) that have a fair
market value in excess of $2.5 million or (b) for net proceeds in excess of $2.5
million. Notwithstanding the foregoing, the following items shall not be deemed
to be Asset Sales: (i) a transfer of assets by an Issuer to a Wholly Owned
Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to an Issuer or
to another Wholly Owned Restricted Subsidiary, (ii) an issuance of Equity
Interests by a Wholly Owned Restricted Subsidiary to the Issuers or to another
Wholly Owned Restricted Subsidiary, (iii) a Restricted Payment that is permitted
by Section 4.07 hereof, (iv) the sale and leaseback of any assets within 90 days
of the acquisition of such assets; PROVIDED that such sale and leaseback
complies with Section 4.15 hereof, (v) foreclosures of assets, and (vi) the sale
at fair market value of property or equipment that has become worn out, obsolete
or damaged or otherwise unsuitable for use in connection with the business of
Grove Investors or any Restricted Subsidiary, as the case may be, in the
ordinary course of business.
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined
2
in accordance with GAAP) of the obligation of the lessee for net 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 or may,
at the option of the lessor, be extended).
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BOARD OF DIRECTORS" means the Board of Directors of Grove Investors
Capital, or any authorized committee of the Board of Directors.
"BORROWING BASE" means,, as of any date, an amount equal to the sum of
85% of the face amount of all accounts receivable and Debentures receivable
owned by Grove Investors and its Restricted Subsidiaries as of such date that
are not more than 90 days past due, as calculated on a consolidated basis and in
accordance with GAAP. To the extent that information is not available as to the
amount of accounts receivable and Debentures receivable as of a specific date,
Grove Investors may utilize the most recent available information for purposes
of calculating the Borrowing Base.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CASH EQUIVALENTS" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in support thereof) having
maturities of not more than one year from the date of acquisition, (iii)
certificates of deposit and eurodollar time deposits with maturities of one year
or less from the date of acquisition, bankers' acceptances with maturities not
exceeding one year and overnight bank deposits, in each case with any domestic
commercial bank having capital and surplus in excess of $500 million, (iv)
repurchase obligations with a term of not more than thirty days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) obligations issued or fully guaranteed 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 Standard & Poor's Corporation or Moody's
Grove Investors Service, Inc., (vi) commercial paper having the highest rating
obtainable from Moody's Grove Investors Service, Inc. or Standard & Poor's
Corporation and in each case maturing within one year after the date of
acquisition and (vii) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (i) through (vi)
of this definition.
3
"CEDEL" means Cedel Bank, S.A.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of Grove Investors and its Subsidiaries
(determined on a consolidated basis) to any "person" (as such term is used in
Section 13(d)(3) of the Exchange Act) other than Grove Investors or a Wholly
Owned Restricted Subsidiary or any Permitted Holder or Permitted Holders, (ii)
the adoption of a plan relating to the liquidation or dissolution of one or both
of the Issuers (other than in a transaction which complies with the provisions
described under Section 5.01 hereof), (iii) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that any "person" (as defined above), other than one or more Permitted
Holders, becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that a person shall be deemed to
have "beneficial ownership" of all securities that such person has the right to
acquire, whether such right is currently exercisable or is exercisable only upon
the occurrence of a subsequent condition), directly or indirectly, of more than
50% of the Voting Stock of Grove Investors (measured by voting power rather than
number of shares) and the Permitted Holders do not beneficially own as much or
more of the Voting Stock of Grove Investors (measured by voting power rather
than by number of shares) than such person, (iv) the first day on which a
majority of the members of the Management Committee of Grove Investors are not
Continuing Members or (v) the first day on which Grove Investors fails to own
100% of the issued and outstanding Equity Interests of Grove Investors Capital
(other than by reason of the merger of Grove Investors Capital with and into a
corporate successor to Grove Investors).
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" or "GROVE" means Grove Worldwide LLC, a Delaware limited
liability company, and any and all successors thereof.
"COMMISSION" means the Securities and Exchange Commission.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (i) an
amount equal to any extraordinary or nonrecurring loss plus any net loss
realized in connection with an Asset Sale or the extinguishment of any
Indebtedness (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) provision for taxes based on income or
profits or the Tax Amount of such Person and its Subsidiaries for such period
or, following the reorganization of Grove Investors as a corporation, any tax
sharing payment made pursuant to a tax sharing agreement executed in connection
therewith, in each case, to the extent that such provision for taxes was
included in computing such Consolidated Net Income, plus (iii) consolidated
interest expense of such Person and its Subsidiaries for such period, whether
paid or accrued and whether or not capitalized (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any) pursuant to Hedging
Obligations), to the extent that any such expense was deducted in computing such
Consolidated Net Income, plus (iv) depreciation, amortization (including
amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash
4
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Subsidiaries for such period to
the extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income, plus (v) any interest
expense on Indebtedness of another person that is guaranteed by such person or a
Subsidiary of such person or secured by a Lien on the assets of such person or
one of its Subsidiaries (to the extent that such interest expense was deducted
in computing Consolidated Net Income in such period), plus (vi) any charges of
up to $30.0 million relating to a facility closing, plus (vii) any charges of up
to $16.0 million resulting from fees payable to the Xxxxxx Group in connection
with the consulting arrangements with Grove Investors or its Restricted
Subsidiaries, plus (viii) one-time expenses associated with inventory, research
and development and other write-ups resulting from purchase accounting
adjustments at the time of the Transactions or any other permitted acquisition
(to the extent such expenses were deducted in computing Consolidated Net Income
in such period), plus (ix) any expenses or charges related to any Equity
Offering, Permitted Investment or Indebtedness permitted to be incurred by this
Indenture (including such expenses or charges related to the Transactions) and
deducted in such period in computing Consolidated Net Income, minus (x) non-cash
items increasing such Consolidated Net Income for such period, in each case, on
a consolidated basis and determined in accordance with GAAP. Notwithstanding
the foregoing, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash charges of, a Subsidiary of
a Person shall be added to Consolidated Net Income to compute Consolidated Cash
Flow only to the extent (and in the same proportion) that the Net Income of such
Subsidiary was included in calculating the Consolidated Net Income of such
Person and only if a corresponding amount would be permitted at the date of
determination to be dividended to Grove Investors by such Subsidiary without
prior approval (that has not been obtained), pursuant to the terms of is charter
and all judgments, decrees, orders, statutes, rules and governmental regulations
applicable to that Subsidiary or its stockholders.
"CONSOLIDATED NET INCOME" means with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
PROVIDED that (i) the Net Income (but not loss) of any Person that is not a
Subsidiary (other than Grove Investors) or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash (or converted into cash) to the referent
Person or a Wholly Owned Restricted Subsidiary thereof, (ii) the Net Income of
any Restricted Subsidiary shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by that Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends
or in similar distributions has been legally waived, provided that Consolidated
Net Income of Grove Investors shall be increased by the amount of dividends or
other distributions or other payments paid in cash (or to the extent converted
into cash) to the referent person or a Wholly Owned Restricted Subsidiary
thereof in respect of such period, (iii) the Net Income of any Person acquired
in a pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded, (iv) the cumulative effect of a change in
accounting principles shall be excluded and (v) the Net Income (but not loss) of
any Unrestricted Subsidiary shall be excluded, whether or not distributed to
Grove Investors or one of its Subsidiaries.
"CONTINUING MEMBERS" means, as of any date of determination, any
member of the Management Committee of Grove Investors who (i) was a member of
such Management Committee on the date of this Indenture or (ii) was nominated
for election or elected to such Management Committee
5
with the approval of a majority of the Continuing Management Committee Members
who were members of such Management Committee at the time of such nomination or
election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to Grove Investors.
"CREDIT FACILITIES" means, with respect to the Issuers or their
Restricted Subsidiaries, one or more debt facilities (including, without
limitation, the New Credit Facility) or commercial paper facilities with banks
or other institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale or factoring of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"CUSTODIAN" means the Trustee, as custodian with respect to the
Debentures in global form, or any successor entity thereof.
"DEALER FINANCING PROGRAM" means (x) that certain financing program
pursuant to which (i) distributors of Grove Investors and its Restricted
Subsidiaries can obtain up to 366-day inventory financing for the purchase of
the Grove Investors' Subsidiaries' products, (ii) units financed will generate
secured notes receivable, accounts receivable, chattel paper, instruments or
other intangibles (collectively, "Receivables"), which Grove Investors or its
Restricted Subsidiaries may sell, from time to time, to financial institutions
at 100% of face value and (iii) Grove Investors or its Restricted Subsidiaries
will insure (with a nationally recognized insurance company with at least $100.0
million in assets) at least 85% of the payment obligations relating to such
Receivables and (y) factoring or discounting arrangements as in effect on the
date of this Indenture or entered into in the ordinary course of business
consistent with past practice.
"DEBENTURES" has the meaning assigned to it in the preamble to this
Indenture (and includes any additional Debentures issued hereunder as payment of
interest on the Debentures).
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"DEFINITIVE DEBENTURE" means Debentures that are in the form of
Exhibit A-1 attached hereto (but without including the text referred to in
footnotes 1 and 3 thereto).
"DEPOSITARY" means, with respect to the Debentures issuable or issued
in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Debentures, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"DISQUALIFIED STOCK" means any Capital Stock that, 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 or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the Holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Debentures mature; PROVIDED, HOWEVER, that any Capital Stock that
would constitute Disqualified Stock solely because the holders thereof have the
right to require the Issuers to repurchase such Capital Stock upon the
occurrence of a Change of Control or an
6
Asset Sale shall not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Issuers may not repurchase or redeem any such Capital
Stock pursuant to such provisions unless such repurchase or redemption complies
with Section 4.07 hereof; and PROVIDED FURTHER, that Capital Stock issued to any
plan for the benefit of employees of Grove Investors or its subsidiaries or by
any such plan to such employees shall not constitute Disqualified Stock solely
because it may be required to be repurchased by Grove Investors in order to
satisfy applicable statutory or regulatory obligations.
"EQUIPMENT FINANCING GUARANTEES" means guarantees (including but not
limited to repurchase or remarketing obligations, residual value guarantees,
conditional loss guarantees or first loss guarantees) by Grove Investors or a
Restricted Subsidiary incurred in the ordinary course of business consistent
with past practice of Indebtedness incurred by a distributor, or other purchaser
or lessor, for the purchase of inventory manufactured or sold by Grove Investors
or a Restricted Subsidiary, the proceeds of which Indebtedness is used solely to
pay the purchase price of such inventory to such distributor or other purchaser
or lessor and any related reasonable fees and expenses (including financing
fees); PROVIDED, HOWEVER, that (1) to the extent commercially practicable, the
Indebtedness so guaranteed is secured by a Lien on such inventory in favor of
the holder of such Indebtedness, and (2) if Grove Investors or such Restricted
Subsidiary is required to make payment with respect to such guarantee, Grove
Investors or such Restricted Subsidiary will have the right to receive either
(q) title to such inventory, (r) a valid assignment of a Lien in such inventory
or (s) the net proceeds of any resale of such inventory.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE DEBENTURES" means the Debentures issued in the Exchange
Offer pursuant to Section 2.06(f) hereof.
"EXISTING INDEBTEDNESS" means up to $15.0 million in aggregate
principal amount of Indebtedness of Grove Investors and its Subsidiaries (other
than Indebtedness under the New Credit Agreement) in existence on the date of
this Indenture, until such amounts are permanently repaid.
"FIXED CHARGES" means, with respect to any Person for any period,
the sum, without duplication, of (i) the consolidated interest expense of
such Person and its Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations;
PROVIDED, HOWEVER, that in no event shall any amortization of deferred
financing costs incurred in connection with the Transactions be included in
fixed charges), (ii) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period, (iii) any
interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its
7
Restricted Subsidiaries or secured by a Lien on assets of such Person or one
of its Subsidiaries (whether or not such Guarantee or Lien is called upon)
excluding, however, guarantees incurred in connection with (a) any Equipment
Financing Guarantee or (b) residual value guarantees, conditional loss
guarantees and similar financings allowed to be incurred pursuant to Section
4.09 hereof and (iv) if and for so long as such Person is taxed as a
partnership for federal income tax purposes, all cash dividend payments or
other distributions of property on any series of preferred stock of such
Person or, if such Person is taxed as a corporation for federal income tax
purposes, the product of (a) all cash dividend payments or other
distributions of property (and non-cash dividend payments in the case of a
Person that is a Subsidiary) on any series of preferred equity of such Person
times (b) a fraction, the numerator of which is one and the denominator of
which is one minus the then current combined federal, state and local
statutory tax rate of such Person expressed as a decimal, in each case, on a
consolidated basis and in accordance with GAAP.
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period. In the event that the
referent Person or any of its Restricted Subsidiaries incurs, assumes,
Guarantees or redeems any Indebtedness (other than revolving credit borrowings)
or issues or redeems preferred equity subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but prior
to the date on which the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee or redemption of Indebtedness, or such issuance or
redemption of preferred equity, as if the same had occurred at the beginning of
the applicable four-quarter reference period. In addition, for purposes of
making the computation referred to above, (i) acquisitions that have been made
by Grove Investors or any of its Restricted Subsidiaries, including through
mergers or consolidations and including any related financing transactions,
during the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date shall be deemed to have occurred on the
first day of the four-quarter reference period and Consolidated Cash Flow for
such reference period shall be calculated without giving effect to clause (iii)
of the proviso set forth in the definition of Consolidated Net Income and shall
reflect any pro forma adjustments for expenses and cost reductions attributable
to such acquisitions (to the extent such adjustments are (x) realizable within
twelve months of the date of the acquisition and (y) based on pro forma
financial statements reviewed by Grove Investors' accountants), (ii) the
Consolidated Cash Flow attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, (iii) the Fixed Charges attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded, but
only to the extent that the obligations giving rise to such Fixed Charges will
not be obligations of the referent Person or any of its Restricted Subsidiaries
following the Calculation Date, (iv) the amount of interest expense attributable
to financings pursuant to the Dealer Financing Program shall be subtracted from
the numerator and excluded from the denominator in calculating the Fixed Charge
Coverage Ratio, provided that the interest income from such financings exceeds
interest expense and (v) Fixed Charges attributable to the Debentures shall be
excluded.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date hereof.
8
"XXXXXX GROUP" means The Xxxxxx Group, Inc., a Texas corporation, and
its successors.
"GLOBAL DEBENTURE LEGEND" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Debentures issued
under this Indenture.
"GLOBAL DEBENTURES" means, individually and collectively, each of the
Restricted Global Debentures and the Unrestricted Global Debentures, in the form
of Exhibit A-1 and Exhibit A-2 hereof issued in accordance with Section 2.01,
2.06(b)(iv), 2.06(d)(ii) or 2.06(f) hereof.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (ii) other agreements
or arrangements designed to protect such Person against fluctuations in interest
or currency exchange rates and (iii) commodities purchase and sale agreements
and/or similar agreements designed to protect such Person against fluctuations
in the price of raw materials used by Grove Investors or its Restricted
Subsidiaries in the ordinary course of business.
"HOLDER" means a Person in whose name a Debenture is registered.
"HOLDINGS" means Grove Holdings LLC, a Delaware limited liability
company, and its successors.
"HOLDINGS CAPITAL" means Holdings Capital, Inc., a Delaware
corporation and wholly-owned subsidiary of Holdings.
"HOLDINGS DEBENTURES" means the 11 5/8% Senior Discount Debentures
due 2009 of Holdings and Holdings Capital.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, Debentures, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien on any asset of such Person (whether or not such Indebtedness is
assumed by such Person) and, to the extent not otherwise included, the Guarantee
by such Person of any indebtedness of any other Person. The amount of any
Indebtedness (other than Hedging Obligations and guarantees) outstanding as of
any date shall be (i) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount, and (ii) the
9
principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Debenture through a Participant.
"INSTITUTIONAL ACCREDITED INVESTOR" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act.
"INVESTMENT GRADE SECURITIES" means (i) securities issued or directly
and fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents), (ii) debt securities or
debt instruments with a rating of BBB- or higher by Standard & Poor's
Corporation or Baa3 or higher by Xxxxx'x Investors Services, Inc. or the
equivalent of such rating by such rating organization, or, if no rating of
Standard & Poor's Corporation or Xxxxx'x Investors Services, Inc. then exists,
the equivalent of such rating by any other nationally recognized securities
rating agency, but excluding any debt securities or instruments constituting
loans or advances among Grove Investors and its Subsidiaries, and (iii)
investments in any fund that invests exclusively in investments of the type
described in clauses (i) and (ii), which fund may also hold immaterial amounts
of cash pending investment and/or distribution.
"INVESTMENTS" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP;
PROVIDED that an acquisition of assets, Equity Interests or other securities by
the Issuers or any of their Restricted Subsidiaries for consideration consisting
solely of Equity Interests (other than Disqualified Stock) of Grove Investors
shall not be deemed to be an Investment. If Grove Investors or any Restricted
Subsidiary of Grove Investors sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of Grove Investors
such that, after giving effect to any such sale or disposition, such Person is
no longer a Restricted Subsidiary of Grove Investors, Grove Investors 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 Equity Interests of such Restricted
Subsidiary not sold or disposed of in an amount determined as provided in the
final paragraph of Section 4.07 hereof.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York 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.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Issuers and sent to all Holders of the Debentures for use by such Holders
in connection with the Exchange Offer.
10
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"LIQUIDATED DAMAGES" shall have the meaning set forth in the
Registration Rights Agreement.
"MANAGEMENT COMMITTEE" means (i) for so long as Grove Investors is a
limited liability company, the Management Committee of Grove Investors and (ii)
otherwise, the Board of Directors of Grove Investors.
"NET INCOME" means, with respect to any Person for any period, (i) the
net income (loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of dividends on preferred interests, excluding,
however, (a) any gain (but not loss), together with any related provision for
taxes or Tax Distributions on such gain (but not loss), realized in connection
with (1) any Asset Sale (including, without limitation, dispositions pursuant to
sale and leaseback transactions) or (2) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries and (b) any
extraordinary or nonrecurring gain (but not loss), together with any related
provision for taxes or Tax Distributions on such extraordinary or nonrecurring
gain (but not loss) less (ii) in the case of any Person that is a partnership or
limited liability company, the Tax Amount of such person for such period.
"NEW CREDIT AGREEMENT" means that certain New Credit Agreement, dated
as of the date of this Indenture, by and among the Company, Grove Capital and
Chase Bank of Texas, National Association, as administrative agent, BankBoston,
N.A., as syndication agent and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, as documentation agent, and certain other lenders party thereto,
providing for up to $125.0 million of revolving credit borrowings and $200.0
million of term borrowings, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced or refinanced from
time to time.
"NEW CREDIT FACILITY" means, with respect to the Issuers and the
Restricted Subsidiaries, one or more debt facilities (including, without
limitation, the New Credit Agreement) or commercial paper facilities with banks
or other institutional lenders 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, in each case as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
"NON-RECOURSE DEBT" means Indebtedness (i) as to which neither Grove
Investors nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise) or (c) constitutes the lender; and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other
11
than the Debentures being offered hereby) of Grove Investors or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity;
and (iii) as to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of Grove Investors or any of its
Restricted Subsidiaries.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities and obligations
payable under the documentation governing any Indebtedness.
"OFFERING" means the offering of the Debentures by the Issuers.
"OFFICER" means, with respect to any Person, the Chairman of the Board
of Directors or Management Committee, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of Grove
Investors by two Officers of Grove Investors, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of Grove Investors, that meets the requirements of
Section 10.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
10.05 hereof. The counsel may be an employee of or counsel to the Issuers, any
Subsidiary of the Issuers or the Trustee.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to DTC, which is the Depositary as of the date
hereof, shall include Euroclear and Cedel).
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or agency or political subdivision
thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"PERMITTED BUSINESS" means any of the businesses and any other
businesses related to the businesses engaged in by Grove Investors and its
respective Restricted Subsidiaries on the date hereof.
"PERMITTED XXXXXX GROUP TRANSACTIONS" means, for purposes of Section
4.11 hereof, consulting arrangements with the Xxxxxx Group and its affiliates
and any payments for fees and expenses thereunder made, provided that such
payments shall not exceed $8.0 million in any fiscal year (with such amount
being subject to reasonable adjustments in connection with advisory and
consulting services rendered in connection with Permitted Investments).
"PERMITTED HOLDERS" means (i) any of Keystone, Inc., XX Xxxxx
Coinvestors, L.P., FW Strategic Partners, L.P., Xxxxxx Group Employee
Partners--Grove, L.P. and Xxxxxxx Xxxxxx and their
12
respective Affiliates on the date hereof; (ii) any of the Permitted Transferees
of the Persons referred to in clause (i); and (iii) any person or group which
holds, directly or indirectly, Equity Interests in Investors so long as a
majority of the Equity Interests in Investors are beneficially owned by the
Persons referred to in clauses (i) and (ii).
"PERMITTED INVESTMENTS" means (a) any Investment in Grove Investors or
in a Restricted Subsidiary of Grove Investors that is engaged in a Permitted
Business; (b) any Investment in Cash Equivalents and Investment Grade
Securities; (c) any Investment by Grove Investors or any Restricted Subsidiary
of Grove Investors in a Person, if as a result of such Investment (i) such
Person becomes a Wholly Owned Restricted Subsidiary of Grove Investors and is
engaged in a Permitted Business or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, Grove Investors or a Wholly Owned Restricted
Subsidiary of Grove Investors that is engaged in Permitted Business; (d) any
Investment made as a result of the receipt of assets not constituting Cash
Equivalents from an Asset Sale; (e) any acquisition of assets solely in exchange
for the issuance of Equity Interests (other than Disqualified Stock) of Grove
Investors; (f) other Investments in any Person having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (f) that are at the time outstanding,
not to exceed $10 million; (g) Investments in securities of customers received
in settlement of obligations or pursuant to a plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors or
customers; (h) Investments existing on the date of this Indenture or made in
connection with the Transactions; (i) Investments consisting of receivables
owing to Grove Investors and its Restricted Subsidiaries and advances or loans
to or the receipt of notes or drafts from, distributors and customers, in each
case in connection with the sale or lease of inventory in the ordinary course of
business and consistent with past practices, including such Investments made
pursuant to or in connection with a Dealer Financing Program; (j) loans and
advances to officers, directors, members and employees for business related
travel expenses, moving expenses and other similar expenses, in each case
incurred in the ordinary course of business and consistent with past practices
not to exceed $1.0 million; (k) any Hedging Obligation; (l) Investments in an
Accounts Receivable Subsidiary made in connection with the formation of an
Accounts Receivable Subsidiary or received in consideration of sales of accounts
receivable, in each case, in accordance with Section 4.14 hereof; (m)
Investments consisting of intercompany loans from Grove Investors and its
Restricted Subsidiaries to Restricted Subsidiaries, including Restricted
Subsidiaries that are not Subsidiary Guarantors; (n) Investments consisting of
capital contributions from Grove Investors or any Restricted Subsidiaries to
Restricted Subsidiaries in an aggregate amount at any one time outstanding not
to exceed $25.0 million; (o) Equipment Financing Guarantees permitted by the
terms of clause (xv) of Section 4.09 hereof; and (p) loans made to managers and
officers of Grove Investors, and promissory notes or other instruments issued to
managers and officers of Grove Investors, in each case, in connection with the
purchase of Equity Interests of Grove Investors or Holdings.
"PERMITTED LIENS" means (i) Liens securing Senior Debt (as defined in
the Senior Subordinated Note Indenture) and Liens on assets of Restricted
Subsidiaries securing Senior Debt permitted by the terms of the Senior
Subordinated Note Indenture to be incurred; (ii) Liens in favor of the Issuers
or a Restricted Subsidiary; (iii) Liens on property of a Person existing at the
time such Person becomes a Restricted Subsidiary of Grove Investors or is merged
into or consolidated with one of Grove Investors or any Subsidiary of Grove
Investors; PROVIDED that such Liens were in existence prior to the contemplation
of such merger or consolidation and do not extend to any assets other than those
of the
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Person merged into or consolidated with Grove Investors or any Subsidiary of
Grove Investors; (iv) Liens on property existing at the time of acquisition
thereof by Grove Investors or any Subsidiary of Grove Investors, provided that
such Liens were in existence prior to the contemplation of such acquisition; (v)
Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
clause (v) of the second paragraph of Section 4.09 hereof covering only the
assets acquired, constructed or improved with such Indebtedness; (vi) Liens
existing on the date of this Indenture; (vii) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(viii) Liens on assets of Unrestricted Subsidiaries that secure Non-Recourse
Debt of Unrestricted Subsidiaries; (ix) Liens incurred in the ordinary course of
business of the Issuers or any Subsidiary of the Issuers with respect to
obligations that do not exceed $5.0 million at any one time outstanding and that
(a) are not incurred in connection with the borrowing of money or the obtaining
of advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of business
by the Issuers or such Subsidiary; (x) liens on assets of the Subsidiary
Guarantors (as defined in the Senior Subordinated Note Indenture) to secure
Senior Debt of such Subsidiary Guarantors that was permitted to be incurred
under this Indenture; (xi) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business; (xii) Liens incurred
or deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security or
similar obligations, 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); (xiii) judgment or attachment
Liens not giving rise to an Event of Default; (xiv) 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 course of the
business of Grove Investors or any of its Restricted Subsidiaries; (xv) any
interest or title of a lessor under any lease, whether or not characterized as
capital or operating; PROVIDED that such Liens do not extend to any property or
assets which is not leased property subject to such lease; (xvi) 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; (xvii) Liens securing reimbursement
obligations with respect to letters of credit and products and proceeds thereof;
(xviii) Liens securing Hedging Obligations which Hedging Obligations relate to
Indebtedness that is otherwise permitted under this Indenture; (xix) Liens
arising out of consignment, conditional sale or similar arrangements for the
purchase of goods entered into by Grove Investors or any Restricted Subsidiary
in the ordinary course of business; (xx) Liens securing Permitted Refinancing
Indebtedness which is incurred to refinance any Indebtedness which has been
secured by a Lien permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; (xxi) Liens with respect to
Equipment Financing Guarantees and related inventory and equipment; (xxii) Liens
incurred in connection with the Dealer Financing Program; and (xxiii) Liens
incurred in the ordinary course of business on equipment and inventory held for
lease by Grove Investors or any of its Restricted Subsidiaries.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Issuers or any of their Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used within 60 days after the incurrence thereof to
extend, refinance, renew, replace, defease or refund other Indebtedness of the
Issuers or any of their Restricted Subsidiaries (other than intercompany
Indebtedness); PROVIDED that:
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(i) the principal amount (or accreted value, if applicable) of such permitted
Refinancing Indebtedness does not exceed the principal amount of (or accreted
value, if applicable), plus accrued interest on, the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses, premiums, penalties, fees and interest incurred in
connection therewith); (ii) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Debentures, such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and is subordinated in right of payment
to, the Debentures on terms at least as favorable to the Holders of Debentures
as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (iv) such
Indebtedness is incurred either by the Issuers or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"PERMITTED TRANSFEREE" means, with respect to any Person: (a) in the
case of any Person who is a natural person, such individual's spouse or
children, any trust for such individual's benefit or the benefit of such
individual's spouse or children, or any corporation, partnership, limited
liability company or similar entity in which the direct and beneficial owner or
owners of 80% or more of the Equity Interests in such Person or such
individual's spouse or children or any trust for the benefit of such Persons;
and (b) in the case of any Person who is a natural person, the heirs, executors,
administrators or personal representatives upon death of such Person or upon the
incompetence or disability of such Person for purposes of the protection and
management of such individual's assets.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(i) to be placed on all Debentures issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"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 receivables financing permitted pursuant to
Section 4.14 hereof.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of April 29, 1998, by and among the Issuers and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the Securities
Act.
"REGULATION S GLOBAL DEBENTURE" means a global Debenture bearing the
Private Placement Legend and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Debentures
initially sold in reliance on Rule 903 of Regulation S or a Regulation S
Temporary Global Debenture or Regulation S Permanent Global Debenture, as
appropriate.
15
"REGULATION S PERMANENT GLOBAL DEBENTURE" means a permanent global
Debenture in the form of Exhibit A/A-1 hereto bearing the Global Debenture
Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Debenture upon expiration of the Restricted Period.
"REGULATION S TEMPORARY GLOBAL DEBENTURE" means a temporary global
Debenture in the form of Exhibit A-2 hereto bearing the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee, issued in a denomination equal to the outstanding principal
amount of the Debentures initially sold in reliance on Rule 903 of Regulation S.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means
any officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture 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 DEBENTURE" means one or more Definitive
Debentures that bear and are required to bear the Private Placement Legend.
"RESTRICTED GLOBAL DEBENTURE" means a Global Debenture bearing the
Private Placement Legend.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED PERIOD" means the 40-day distribution compliance period as
defined in Regulation S.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the
referent Person that 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.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR SUBORDINATED NOTE INDENTURE" means the Indenture relating to
the Senior Subordinated Notes.
"SENIOR SUBORDINATED NOTES" means the 9 1/4% Senior Subordinated
Notes due 2008 of Grove Worldwide LLC and Grove Capital, Inc.
16
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act, as such Regulation is in effect on the date
hereof.
"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.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TAX AMOUNT" means, with respect to Grove Investors for any period,
the product of (i) the taxable income of Grove Investors for such period and
(ii) the maximum combined Federal, state and local income tax rates applicable
to an individual resident in New York City or California, whichever is higher;
PROVIDED, HOWEVER, that in determining the Tax Amount, the effect thereon of any
net operating loss carryforwards or other carryforwards or tax attributes
attributable to Grove Investors, such as alternative minimum tax carryforwards
shall be taken into account, and adjusted to take into account any applicable
credits, deductions or other adjustments allowed under both New York and
California law to a direct or indirect owner of an interest in Grove Investors
for state and local income tax purposes.
"TAX DISTRIBUTION" means a distribution in respect of taxes to the
members of Grove Investors pursuant to clause (vi) of Section 4.07 hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA; PROVIDED, HOWEVER, that, in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendments, the Trust Indenture Act of 1939 as so amended.
"TRANSACTIONS" means each of (i) the acquisition by the Company
through certain of its subsidiaries of the mobile hydraulic crane, aerial work
platform and truck mounted crane businesses of Xxxxxx Funding (G) PLC and
certain of its subsidiaries, for aggregate cash consideration of approximately
$583.0 million plus certain assumed liabilities (the "Acquisition"); (ii)
approximately $203.0 million of borrowings under the New Credit Facility; (iii)
approximately $225.0 million of estimated gross proceeds from the Offering; and
(iv) an approximately $168.0 million equity contribution to the Company by Grove
Investors LLC, a Delaware limited liability company (the "Equity Contribution").
17
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"UNRESTRICTED DEFINITIVE DEBENTURE" means one or more Definitive
Debentures that do not bear and are not required to bear the Private Placement
Legend.
"UNRESTRICTED GLOBAL DEBENTURE" means a permanent global Debenture in
the form of Exhibit A-1 and Exhibit A-2 attached hereto that bears the Global
Debenture Legend and that has the "Schedule of Exchanges of Interests in the
Global Debenture" attached thereto, and that is deposited with or on behalf of
and registered in the name of the Depositary, representing a series of
Debentures that do not bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary (other than Grove
Investors Capital) or any successor to any of them that is designated by the
Management Committee as an Unrestricted Subsidiary pursuant to a resolution of
the Management Committee; but only to the extent that such Subsidiary: (a) has
no Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement,
contract, arrangement or understanding with Grove Investors or any Restricted
Subsidiary of Grove Investors unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to Grove Investors or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of Grove Investors; (c) is a Person with respect to which
neither Grove Investors nor any of its Restricted Subsidiaries has any direct or
indirect obligation (x) to subscribe for additional Equity Interests or (y) to
maintain or preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results; (d) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
Grove Investors or any of its Restricted Subsidiaries; and (e) has at least one
director on its board of directors that is not a director or executive officer
of Grove Investors or any of its Restricted Subsidiaries and has at least one
executive officer that is not a director or executive officer of Grove Investors
or any of its Restricted Subsidiaries. Any such designation by the Management
Committee shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of the Management Committee giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted by Section 4.07 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of
Grove Investors as of such date (and, if such Indebtedness is not permitted to
be incurred as of such date under Section 4.09 hereof, the Issuers shall be in
default of such covenant). The Management Committee of Grove Investors may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary,
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of Grove Investors of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period, and (ii) no Default or Event of
Default would be in existence following such designation.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
18
"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
Management Committee of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than (x) directors' qualifying shares and
(y) shares required to be held by a second shareholder pursuant to the laws of
France in an amount not to exceed one-tenth of one percent of the outstanding
shares) shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
TERM DEFINED IN
SECTION
"AFFILIATE TRANSACTION". . . . . . . . . . . . . . . . . . . . . . . . . .4.11
"ASSET SALE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.10
"ASSET SALE OFFER" . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.09
"AUTHENTICATION ORDER" . . . . . . . . . . . . . . . . . . . . . . . . . .2.02
"BANKRUPTCY LAW" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.01
"CHANGE OF CONTROL OFFER". . . . . . . . . . . . . . . . . . . . . . . . .4.15
"CHANGE OF CONTROL PAYMENT". . . . . . . . . . . . . . . . . . . . . . . .4.15
"CHANGE OF CONTROL PAYMENT DATE" . . . . . . . . . . . . . . . . . . . . .4.15
"COMMISSION" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.03
"COVENANT DEFEASANCE". . . . . . . . . . . . . . . . . . . . . . . . . . .8.03
"DTC". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.03
"EVENT OF DEFAULT" . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.01
"EXCESS PROCEEDS". . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.10
"FINANCIER". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.14
"INCUR". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.09
"LEGAL DEFEASANCE" . . . . . . . . . . . . . . . . . . . . . . . . . . . .8.02
"OFFER AMOUNT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.09
"OFFER PERIOD" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.09
"PAYING AGENT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.03
"PERMITTED DEBT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.09
"PROMISSORY NOTE". . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.14
"PURCHASE DATE". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3.09
"REGISTRAR". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.03
"RELEVANT ENTITY". . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.01
"RESTRICTED PAYMENTS". . . . . . . . . . . . . . . . . . . . . . . . . . .4.07
19
SECTION 1.03. TRUST INDENTURE ACT TERMS.
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 Debentures;
"INDENTURE SECURITY HOLDER" means a Holder of a Debenture;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Debentures means the Issuers and any successor
obligor upon the Debentures.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
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) provisions apply to successive events and
transactions; and
(6) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement
or successor sections or rules adopted by the Commission from
time to time.
20
ARTICLE 2.
THE DEBENTURES
SECTION 2.01. FORM AND DATING.
(a) GENERAL. The Debentures and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 and Exhibit A-2
hereto. The Debentures may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Debenture shall be dated the date of
its authentication. The Debentures shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Debentures shall constitute,
and are hereby expressly made, a part of this Indenture and the Issuers and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Debenture conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
(b) GLOBAL DEBENTURES. Debentures issued in global form shall be
substantially in the form of Exhibits A-1 or A-2 attached hereto (including the
Global Debenture Legend thereon and the "Schedule of Exchanges of Interests in
the Global Debenture" attached thereto). Debentures issued in definitive form
shall be substantially in the form of Exhibit A-1 attached hereto (but without
the Global Debenture Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Debenture" attached thereto). Each Global Debenture
shall represent such of the outstanding Debentures as shall be specified therein
and each shall provide that it shall represent the aggregate principal amount of
outstanding Debentures from time to time endorsed thereon and that the aggregate
principal amount of outstanding Debentures represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Debenture to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Debentures
represented thereby shall be made by the Trustee or the Debenture Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
(c) TEMPORARY GLOBAL DEBENTURES. Debentures offered and sold in reliance
on Regulation S shall be issued initially in the form of the Regulation S
Temporary Global Debenture, which shall be deposited on behalf of the purchasers
of the Debentures represented thereby with the Trustee, at its New York office,
as custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Cedel Bank, duly executed by the Issuers and
authenticated by the Trustee as hereinafter provided. The Restricted Period
shall be terminated upon the receipt by the Trustee of (i) a written certificate
from the Depositary, together with copies of certificates from Euroclear and
Cedel Bank certifying that they have received certification of non-United States
beneficial ownership of 100% of the aggregate principal amount of the Regulation
S Temporary Global Debenture (except to the extent of any beneficial owners
thereof who acquired an interest therein during the Restricted Period pursuant
to another exemption from registration under the Securities Act and who will
take delivery of a beneficial ownership interest in a 000X Xxxxxx Xxxxxxxxx, all
as contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officers'
Certificate from the Issuers. Following the termination of the Restricted
Period, beneficial interests in the Regulation S Temporary Global Debenture
shall be exchanged for beneficial interests in Regulation S Permanent Global
Debentures pursuant to the Applicable Procedures. Simultaneously with the
authentication of
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Regulation S Permanent Global Debentures, the Trustee shall cancel the
Regulation S Temporary Global Debenture. The aggregate principal amount of the
Regulation S Temporary Global Debenture and the Regulation S Permanent Global
Debentures may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee, as the case may
be, in connection with transfers of interest as hereinafter provided.
(d) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Temporary Global Debenture and the
Regulation S Permanent Global Debentures that are held by Participants through
Euroclear or Cedel Bank.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Debentures for each of the Issuers by
manual or facsimile signature.
If an Officer whose signature is on a Debenture no longer holds that
office at the time a Debenture is authenticated, the Debenture shall
nevertheless be valid.
A Debenture shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Debenture has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuers signed by an
Officer of each Issuer (an "AUTHENTICATION ORDER"), authenticate Debentures for
original issue up to the aggregate principal amount stated in paragraph 4 of the
Debentures plus Debentures issued to pay Liquidated Damages pursuant to
paragraphs 1 and 2 of the Debentures. The aggregate principal amount of
Debentures outstanding at any time pursuant to this Indenture may not exceed
$300,000,000 except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Debentures. An authenticating agent may authenticate
Debentures 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 Issuers shall maintain an office or agency where Debentures may be
presented for registration of transfer or for exchange (the "REGISTRAR") and an
office or agency where Debentures may be presented for payment (the "PAYING
AGENT"). The Registrar shall keep a register of the Debentures and of their
transfer and exchange. The Issuers 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 Issuers may change any Paying Agent or Registrar without notice to any
Holder. The Issuers shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. If the Issuers fail to appoint or
maintain another entity as Registrar or
22
Paying Agent, the Trustee shall act as such. The Issuers or any of their
Subsidiaries may act as Paying Agent or Registrar.
The Issuers initially appoint The Depository Trust Company (the "DTC")
to act as Depositary with respect to the Global Debentures.
The Issuers initially appoint the Trustee to act as the Registrar and
Paying Agent and to act as Debenture Custodian with respect to the Global
Debentures.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, and interest on the
Debentures, and shall 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 Issuers)
shall have no further liability for the money. If any of the Issuers 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 the Issuers, the Trustee
shall serve as Paying Agent for the Debentures.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Debentures and the Issuers shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE. A Global Debenture may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. All Global Debentures shall be exchanged by the Issuers
for Definitive Debentures if (i) the Issuers deliver to the Trustee notice from
the Depositary that it is unshalling or unable to continue to act as Depositary
or that it is no longer a clearing agency registered under the Exchange Act and,
in either case, a successor Depositary is not appointed by the Issuers within
120 days after the date of such notice from the Depositary or (ii) the Issuers
in their sole discretion determine that the Global Debentures (in whole but not
in part) should be exchanged for Definitive Debentures and delivers a written
notice to such effect to the Trustee; PROVIDED that in no event shall the
Regulation S Temporary Global Debenture be exchanged by the Issuers for
Definitive Debentures prior to (x) the expiration of the Restricted Period and
(y) the receipt by the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act. Upon the occurrence of either of the
preceding events in (i) or (ii) above, Definitive Debentures shall be issued in
such names as the
23
Depositary shall instruct the Trustee. Global Debentures also may be exchanged
or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Debenture authenticated and delivered in exchange for, or in lieu of, a
Global Debenture or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Debenture. A Global Debenture may not be exchanged
for another Debenture other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Debenture may be transferred and exchanged as
provided in Section 2.06(b),(c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
DEBENTURES. The transfer and exchange of beneficial interests in the Global
Debentures shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Debentures shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Debentures also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL DEBENTURE.
Beneficial interests in any Restricted Global Debenture may be transferred
to Persons who take delivery thereof in the form of a beneficial interest
in the same Restricted Global Debenture in accordance with the transfer
restrictions set forth in the Private Placement Legend; PROVIDED, HOWEVER,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Temporary Regulation S Global Debenture may not
be made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Debenture may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Debenture. No written orders or instructions shall be required to
be delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN
GLOBAL DEBENTURES. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above, the
transferor of such beneficial interest must deliver to the Registrar either
(A) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Debenture in an amount equal to the beneficial interest to
be transferred or exchanged and (2) instructions given in accordance with
the Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause
to be issued a Definitive Debenture in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Debenture shall be registered to effect the
transfer or exchange referred to in (1) above; PROVIDED that in no event
shall Definitive Debentures be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Debenture prior
to (x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer by the Issuers in
accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the
24
Holder of such beneficial interests in the Restricted Global Debentures.
Upon satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Debentures contained in this Indenture and
the Debentures or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Debentures
pursuant to Section 2.06(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED GLOBAL
DEBENTURE. A beneficial interest in any Restricted Global Debenture may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Debenture if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee shall take delivery in the form
of a beneficial interest in the 000X Xxxxxx Xxxxxxxxx, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee shall take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Debenture or the Regulation S Global Debenture, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee shall take delivery in the form
of a beneficial interest in the IAI Global Debenture, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates and Opinion
of Counsel required by item (3) thereof, if applicable.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RESTRICTED
GLOBAL DEBENTURE FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED GLOBAL
DEBENTURE. A beneficial interest in any Restricted Global Debenture may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Debenture or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Debenture if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal all matters required to be certified by it under
Section 5(a)(ii) of the Registration Rights Agreement;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
25
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Debenture proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Debenture, a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Debenture proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Debenture, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Debenture has not yet been issued,
the Issuers shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Debentures in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Debenture cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Debenture.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE
DEBENTURES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL DEBENTURES TO
RESTRICTED DEFINITIVE DEBENTURES. If any holder of a beneficial interest
in a Restricted Global Debenture proposes to exchange such beneficial
interest for a Restricted Definitive Debenture or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Debenture, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Debenture proposes to exchange such beneficial
interest for a Restricted Definitive Debenture, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under
26
the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred
to one of the Issuers or any of their Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Debenture to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Issuers shall execute and the Trustee shall authenticate
and deliver to the Person designated in the instructions a Definitive
Debenture in the appropriate principal amount. Any Definitive Debenture
issued in exchange for a beneficial interest in a Restricted Global
Debenture pursuant to this Section 2.06(c) shall be registered in such name
or names and in such authorized denomination or denominations as the holder
of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Debentures to the
Persons in whose names such Debentures are so registered. Any Definitive
Debenture issued in exchange for a beneficial interest in a Restricted
Global Debenture pursuant to this Section 2.06(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer
contained therein.
Notwithstanding Sections 2.06(c)(i)(A) and (c) hereof, a beneficial
interest in the Regulation S Temporary Global Debenture may not be exchanged for
a Definitive Debenture or transferred to a Person who takes delivery thereof in
the form of a Definitive Debenture prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 903 or Rule 904.
(ii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL DEBENTURES TO
UNRESTRICTED DEFINITIVE DEBENTURES. A holder of a beneficial interest in a
Restricted Global Debenture may exchange such beneficial interest for an
Unrestricted Definitive Debenture or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Debenture only if:
27
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal all matters
required to be certified by it under Section 5(a)(ii) of the
Registration Rights Agreement;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Debenture proposes to exchange such beneficial
interest for a Definitive Debenture that does not bear the
Private Placement Legend, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Debenture proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a Definitive Debenture that does not bear the Private
Placement Legend, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
(iii) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL DEBENTURES TO
UNRESTRICTED DEFINITIVE DEBENTURES. If any holder of a beneficial interest
in an Unrestricted Global Debenture proposes to exchange such beneficial
interest for a Definitive Debenture or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Debenture, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount
of the applicable Global Debenture to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Issuers shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Debenture in the appropriate principal amount. Any Definitive
Debenture issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Debentures to the Persons in whose names such
Debentures are so registered. Any Definitive Debenture issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(iii) shall not
bear the Private Placement Legend.
28
(d) TRANSFER AND EXCHANGE OF DEFINITIVE DEBENTURES FOR BENEFICIAL
INTERESTS.
(i) RESTRICTED DEFINITIVE DEBENTURES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL DEBENTURES. If any Holder of a Restricted Definitive
Debenture proposes to exchange such Debenture for a beneficial interest in
a Restricted Global Debenture or to transfer such Restricted Definitive
Debentures to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Debenture, then, upon receipt by
the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Debenture proposes to exchange such Debenture for a beneficial
interest in a Restricted Global Debenture, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Debenture is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Debenture is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Debenture is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Definitive Debenture is being
transferred to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Debenture is being
transferred to an Issuer or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Debenture is being
transferred pursuant to an effective registration statement under
the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cancel the Restricted Definitive Debenture, increase
or cause to be increased the aggregate principal amount of, in the
case of clause (A) above, the appropriate Restricted Global Debenture,
in the case of clause (B) above, the 144A
29
Global Debenture, in the case of clause (c) above, the Regulation S
Global Debenture, and in all other cases, the IAI Global Debenture.
(ii) RESTRICTED DEFINITIVE DEBENTURES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL DEBENTURES. A Holder of a Restricted Definitive
Debenture may exchange such Debenture for a beneficial interest in an
Unrestricted Global Debenture or transfer such Restricted Definitive
Debenture to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Debenture only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal all matters required to be
certified by it under Section 5(a)(ii) of the Registration Rights
Agreement;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Debentures
proposes to exchange such Debentures for a beneficial interest in
the Unrestricted Global Debenture, a certificate from such Holder
in the form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or
(2) if the Holder of such Definitive Debentures
proposes to transfer such Debentures to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Debenture, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Debentures and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Debenture.
(iii) UNRESTRICTED DEFINITIVE DEBENTURES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL DEBENTURES. A Holder of an Unrestricted Definitive
Debenture may exchange such Debenture for a beneficial interest in an
Unrestricted Global Debenture or transfer such Definitive
30
Debentures to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Debenture at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Debenture and increase or
cause to be increased the aggregate principal amount of one of the
Unrestricted Global Debentures.
If any such exchange or transfer from a Definitive Debenture to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Debenture has not yet been
issued, the Issuers shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Debentures in an aggregate principal amount equal to the
principal amount of Definitive Debentures so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE DEBENTURES FOR DEFINITIVE
DEBENTURES. Upon request by a Holder of Definitive Debentures and such
Holder's compliance with the provisions of this Section 2.06(e), the Registrar
shall register the transfer or exchange of Definitive Debentures. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Debentures duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).
(i) RESTRICTED DEFINITIVE DEBENTURES TO RESTRICTED DEFINITIVE
DEBENTURES. Any Restricted Definitive Debenture may be transferred to and
registered in the name of Persons who take delivery thereof in the form of
a Restricted Definitive Debenture if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) RESTRICTED DEFINITIVE DEBENTURES TO UNRESTRICTED DEFINITIVE
DEBENTURES. Any Restricted Definitive Debenture may be exchanged by the
Holder thereof for an Unrestricted Definitive Debenture or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Debenture if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
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applicable Letter of Transmittal all matters required to be certified
by it under Section 5(a)(ii) of the Registration Rights Agreement;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Debentures proposes to exchange such Debentures for an
Unrestricted Definitive Debenture, a certificate from such Holder
in the form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Debentures proposes to transfer such Debentures to a Person who
shall take delivery thereof in the form of an Unrestricted
Definitive Debenture, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests, an Opinion of Counsel in form reasonably acceptable to the
Issuers to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE DEBENTURES TO UNRESTRICTED DEFINITIVE
DEBENTURES. A Holder of Unrestricted Definitive Debentures may transfer
such Debentures to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Debenture. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted Definitive
Debentures pursuant to the instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Issuers shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Unrestricted Global Debentures in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Debentures tendered for acceptance by Persons
that certify in the applicable Letters of Transmittal all matters required to be
certified by it under Section 5(a)(ii) of the Registration Rights Agreement, and
accepted for exchange in the Exchange Offer and (ii) Definitive Debentures in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Debentures accepted for exchange in the Exchange Offer. Concurrently
with the issuance of such Debentures, the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global Debentures to be reduced
accordingly, and the Issuers shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the Holders of Definitive Debentures so
accepted Definitive Debentures in the appropriate principal amount.
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(g) LEGENDS. The following legends shall appear on the face of all
Global Debentures and Definitive Debentures issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B) below,
each Global Debenture and each Definitive Debenture (and all
Debentures issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX
XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A OR REGULATION S THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUERS THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1)(a) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (d) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE WITH A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE
FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER
IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN
$250,000, AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE ISSUERS SO REQUEST), (2) TO THE
ISSUERS OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THE
33
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(B) Notwithstanding the foregoing, any Global
Debenture or Definitive Debenture issued pursuant to
subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii),
(e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Debentures
issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.
(ii) GLOBAL DEBENTURE LEGEND. Each Global Debenture shall bear a
legend in substantially the following form:
"THIS GLOBAL DEBENTURE IS HELD BY THE DEPOSITARY (AS DEFINED IN
THIS INDENTURE GOVERNING THIS DEBENTURE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS
NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THIS INDENTURE, (II) THIS
GLOBAL DEBENTURE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THIS INDENTURE, (III) THIS GLOBAL
DEBENTURE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THIS INDENTURE AND (IV) THIS GLOBAL
DEBENTURE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE ISSUERS."
(iii) REGULATION S TEMPORARY GLOBAL DEBENTURE LEGEND. The Regulation
S Temporary Global Debenture shall bear a legend in substantially the
following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
DEBENTURE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS
EXCHANGE FOR CERTIFICATED DEBENTURES, ARE AS SPECIFIED IN THIS
INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL DEBENTURE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL DEBENTURES. At such time as
all beneficial interests in a particular Global Debenture have been exchanged
for Definitive Debentures or a particular Global Debenture has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Debenture
shall be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Debenture is exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Debenture or for Definitive Debentures, the principal amount of
Debentures represented by such Global Debenture shall be reduced accordingly and
an endorsement shall be made on such Global Debenture by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take
34
delivery thereof in the form of a beneficial interest in another Global
Debenture, such other Global Debenture shall be increased accordingly and an
endorsement shall be made on such Global Debenture by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Global Debentures
and Definitive Debentures upon the Issuers' order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Debenture or to a Holder of a Definitive Debenture for
any registration of transfer or exchange, but the Issuers may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Debenture selected for redemption in whole or in part,
except the unredeemed portion of any Debenture being redeemed in part.
(iv) All Global Debentures and Definitive Debentures issued upon
any registration of transfer or exchange of Global Debentures or Definitive
Debentures shall be the valid obligations of the Issuers, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Debentures or Definitive Debentures surrendered upon such
registration of transfer or exchange.
(v) The Issuers shall not be required (A) to issue, to register
the transfer of or to exchange any Debentures during a period beginning at
the opening of business 15 days before the day of any selection of
Debentures for redemption under Section 3.02 hereof and ending at the close
of business on the day of selection, (B) to register the transfer of or to
exchange any Debenture so selected for redemption in whole or in part,
except the unredeemed portion of any Debenture being redeemed in part or
(C) to register the transfer of or to exchange a Debenture between a record
date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Debenture, the Trustee, any Agent and the Issuers may deem and treat
the Person in whose name any Debenture is registered as the absolute owner
of such Debenture for the purpose of receiving payment of principal of and
interest on such Debentures and for all other purposes, and none of the
Trustee, any Agent or the Issuers shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Global Debentures and
Definitive Debentures in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
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SECTION 2.07. REPLACEMENT DEBENTURES
If any mutilated Debenture is surrendered to the Trustee, or the
Issuers and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debenture, the Issuers shall issue and the
Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Debenture if the Trustee's requirements are met. If required by the
Trustee or the Issuers, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Issuers to protect the
Issuers, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Debenture is replaced. The Issuers may charge for
their expenses in replacing a Debenture.
Every replacement Debenture is an additional obligation of the Issuers
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Debentures duly issued hereunder.
SECTION 2.08. OUTSTANDING DEBENTURES.
The Debentures outstanding at any time are all the Debentures
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Debenture
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a Debenture does not cease to be outstanding because the Issuers or
an Affiliate of the Issuers holds the Debenture.
If a Debenture is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Debenture is held by a bona fide purchaser.
If the principal amount of any Debenture is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Issuers, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Debentures payable on that date, then on and after that date
such Debentures shall be deemed to be no longer outstanding and shall cease to
accrue interest.
SECTION 2.09. TREASURY DEBENTURES.
In determining whether the Holders of the required principal amount of
Debentures have concurred in any direction, waiver or consent, Debentures owned
by an Issuer, or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with an Issuer, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Debentures that the Trustee knows are so
owned shall be so disregarded.
SECTION 2.10. TEMPORARY DEBENTURES.
Until certificates representing Debentures are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Debentures.
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Temporary Debentures shall be substantially in the form of certificated
Debentures but may have variations that the Issuers consider appropriate for
temporary Debentures and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Issuers shall prepare and the Trustee shall
authenticate definitive Debentures in exchange for temporary Debentures.
Holders of temporary Debentures shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11. CANCELLATION.
The Issuers at any time may deliver Debentures to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Debentures surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Debentures surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Debentures (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all cancelled
Debentures shall be delivered to the Issuers. The Issuers may not issue new
Debentures to replace Debentures that they have paid or that have been delivered
to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Issuers default in a payment of interest on the Debentures,
they shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Debentures and in Section 4.01 hereof. The Issuers shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Debenture and the date of the proposed payment. The Issuers shall fix or
cause to be fixed each such special record date and payment date, provided that
no such special record date shall be less than 3 days prior to the related
payment date for such defaulted interest. At least 7 days before the special
record date, the Issuers (or, upon the written request of the Issuers, the
Trustee in the name and at the expense of the Issuers) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders of
the Debentures entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
SECTION 2.14. COMPUTATION OF INTEREST.
Interest on the Debentures shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION 2.15. CUSIP NUMBER.
The Issuers in issuing the Debentures may use a "CUSIP" number, and if
they do so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness or accuracy of
37
the CUSIP number printed in the notice or on the Debentures and that reliance
may be placed only on the other identification numbers printed on the
Debentures. The Issuers shall promptly notify the Trustee of any change in the
CUSIP number.
ARTICLE 3.
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Issuers elect to redeem Debentures pursuant to the optional
redemption provisions of Section 3.07 hereof, they shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Debentures to be redeemed and (iv) the redemption price.
SECTION 3.02. SELECTION OF DEBENTURES TO BE REDEEMED.
If less than all of the Debentures are to be redeemed or purchased in
an offer to purchase at any time, the Trustee shall select the Debentures to be
redeemed or purchased among the Holders of the Debentures in compliance with the
requirements of the principal national securities exchange, if any, on which the
Debentures are listed or, if the Debentures are not so listed, on a PRO RATA
basis, by lot or in accordance with any other method the Trustee considers fair
and appropriate. In the event of partial redemption by lot, the particular
Debentures to be redeemed shall be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption date by the
Trustee from the outstanding Debentures not previously called for redemption.
The Trustee shall promptly notify the Issuers in writing of the
Debentures selected for redemption and, in the case of any Debenture selected
for partial redemption, the principal amount thereof to be redeemed. Debentures
and portions of Debentures selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Debentures of a Holder are to be
redeemed, the entire outstanding amount of Debentures held by such Holder, even
if not a multiple of $1,000, shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Debentures called
for redemption also apply to portions of Debentures called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Issuers shall mail or cause
to be mailed, by first-class mail, a notice of redemption to each Holder whose
Debentures are to be redeemed at its registered address.
The notice shall identify the Debentures to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Debenture is being redeemed in part, the portion of the
principal amount of such Debenture to be redeemed and that, after the redemption
date upon surrender of such Debenture, a new
38
Debenture or Debentures in principal amount equal to the unredeemed portion
shall be issued upon cancellation of the original Debenture;
(d) the name and address of the Paying Agent;
(e) that Debentures called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption payment,
interest on Debentures called for redemption ceases to accrue on and after the
redemption date;
(g) the paragraph of the Debentures and/or Section of this Indenture
pursuant to which the Debentures called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Debentures.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' names and at their expense; PROVIDED, HOWEVER, that
the Issuers shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph and the date on which the Issuers wish the Trustee to
mail such notice.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Debentures called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Issuers shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Debentures to be redeemed on
that date. The Trustee or the Paying Agent shall promptly return to the Issuers
any money deposited with the Trustee or the Paying Agent by the Issuers in
excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Debentures to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the
Debentures or the portions of Debentures called for redemption. If a Debenture
is redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Debenture was registered at the close of business on
such record date. If any Debenture called for redemption shall not be so paid
upon surrender for redemption because of the failure of the Issuers to comply
with the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption date until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each case at the rate
provided in the Debentures and in Section 4.01 hereof.
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SECTION 3.06. DEBENTURES REDEEMED IN PART.
Upon surrender of a Debenture that is redeemed in part, the Issuers
shall issue and, upon the Issuers' written request, the Trustee shall
authenticate for the Holder at the expense of the Issuers, a new Debenture equal
in principal amount to the unredeemed portion of the Debenture surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) The Debentures shall be redeemable at any time at the option of the
Issuers, in whole or in part upon not less than 30 nor more than 60 days'
notice, in cash at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 1 of the years indicated below:
YEAR PERCENTAGE
------- -------------
2003............................107.250%
2004............................104.833%
2005............................102.417%
2006 and thereafter.............100.000%
(b) Notwithstanding the foregoing, at any time prior to May 1, 2003, the
Issuers may redeem all but not less than all of the aggregate principal amount
of Debentures originally issued at a redemption price equal to 114.5% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the redemption date.
(c) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
The Issuers shall not be required to make mandatory redemption or
sinking fund payments with respect to the Debentures.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF DEBENTURES.
The Issuers shall pay or cause to be paid the principal of, premium,
if any, and interest on the Debentures on the dates and in the manner provided
in the Debentures. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the Issuers or a
Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date, money
deposited by the Issuers in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. The
Issuers shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement and in
the Debentures.
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The Issuers shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Debentures
to the extent lawful; they shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
and Liquidated Damages (without regard to any applicable grace period) at the
same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Issuers shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Debentures may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Issuers in respect of the Debentures and this Indenture
may be served. The Issuers shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Issuers shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Issuers may also from time to time designate one or more other
offices or agencies where the Debentures may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Issuers of their obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Issuers shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Issuers hereby designate the Corporate Trust Office of the Trustee
as one such office or agency of the Issuers in accordance with Section 2.03.
SECTION 4.03. REPORTS.
Whether or not required by the rules and regulations of the Securities
and Exchange Commission (the "Commission"), so long as any Debentures are
outstanding, Grove Investors shall furnish to the Holders of Debentures (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if Grove
Investors was required to file such Forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" that describes
the financial condition and results of operations of Grove Investors and its
consolidated Subsidiaries and, with respect to the annual information only, a
report thereon by Grove Investors' certified independent accountants and (ii)
all current reports that would be required to be filed with the Commission on
Form 8-K if Grove Investors was required to file such reports, in each case
within the time periods specified in the Commission's rules and regulations. In
addition, following the consummation of the exchange offer contemplated by the
Registration Rights Agreement, whether or not required by the rules and
regulations of the Commission, Grove Investors shall file a copy of all such
information and reports with the Commission for public availability within the
time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. In addition, (i) at
all times the Commission does not accept the filings provided for in the
preceding sentence or (ii) such filings provided for in the preceding sentence
do not contain the information required to be delivered upon request pursuant to
Rule 144A(d)(4) under the Securities Act,
41
then, in each case, Grove Investors, for so long as any Debentures remain
outstanding, shall furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act. The Issuers
shall at all times comply with TIA Section 314(a).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Issuers shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Issuers and their Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Issuers have kept, observed, performed and fulfilled
their obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his or her knowledge the
Issuers have kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Issuers have taking or propose to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Debentures is prohibited or if such event has occurred,
a description of the event and what action the Issuers have taking or propose to
take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Issuers' independent public accountants (who shall be a
firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Issuers have violated
any provisions of Article 4 (other than Sections 4.02, 4.03, 4.04 and 4.06, as
to which no belief need be expressed) or Article 5 hereof or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation. In the Event that such written statement of the Issuers' independent
public accountants cannot be obtain, the Issuers shall deliver an Officer's
Certificate certifying that they have used their best efforts to obtain such
statement but were unable to do so.
(c) The Issuers shall, so long as any of the Debentures are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Issuers have taken or propose to take with
respect thereto
SECTION 4.05. TAXES.
The Issuers shall pay, and shall cause each of their Subsidiaries to
pay, prior to delinquency, all material taxes, assessments and governmental
levies, except such as are contested in good faith and by appropriate
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Debentures
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SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
Each of the Issuers covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Issuers (to the extent
that they may lawfully do so) hereby expressly waive all benefit or advantage of
any such law, and covenants that they shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
Grove Investors shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of Grove Investors' or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving Grove Investors
or any of its Restricted Subsidiaries) or to the direct or indirect holders of
Grove Investors' or any of its Restricted Subsidiaries' Equity Interests in
their capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of Grove Investors or dividends or
distributions payable to Grove Investors or a Restricted Subsidiary of Grove
Investors); (ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Issuers) any Equity Interests of Grove Investors (other than
Equity Interests owned by Grove Investors or any Restricted Subsidiary of Grove
Investors) or any direct or indirect parent of Grove Investors; (iii) make any
payment on or with respect to, or purchase, redeem, defease or otherwise acquire
or retire for value any Indebtedness that is subordinated to the Debentures
(other than any subordinated indebtedness held by Grove Investors), except a
payment of interest or principal at Stated Maturity; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at
the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof; and
(b) Grove Investors would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by Grove Investors and its Restricted
Subsidiaries after the date of this Indenture (excluding Restricted Payments
permitted by clauses (ii), (iii), (iv), (vi), (viii), (x), (xi), and (xiii) of
the next succeeding paragraph), is less than the sum, without duplication, of
(i) 50% of the Consolidated Net Income of Grove Investors for the period (taken
as one accounting period) from the beginning of the first fiscal quarter
commencing after the date of this Indenture to the end of Grove Investors' most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit), plus (ii) 100%
of the aggregate net cash proceeds received by Grove Investors since the date of
Indenture as a contribution to its equity capital or from the issue or sale of
Equity Interests of Grove Investors (other
43
than Disqualified Stock) or from the issue or sale of Disqualified Stock or debt
securities of Grove Investors that have been converted into such Equity
Interests (other than Equity Interests (or Disqualified Stock or convertible
debt securities) sold to a Subsidiary of Grove Investors), plus (iii) to the
extent that any Restricted Investment that was made after the date of this
Indenture is sold for cash or otherwise liquidated or repaid for cash, the
lesser of (A) the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) and (B) the initial amount of
such Restricted Investment, plus (iv) 50% of any dividends received by Grove
Investors or a Wholly Owned Restricted Subsidiary after the date hereto from an
Unrestricted Subsidiary of Grove Investors, to the extent that such dividends
were not otherwise included in Consolidated Net Income of Grove Investors for
such period, plus (v) to the extent that any Unrestricted Subsidiary is
redesignated as a Restricted Subsidiary after the date of this Indenture, the
lesser of (A) the fair market value of Grove Investors' Investment in such
Subsidiary as of the date of such redesignation or (B) such fair market value as
of the date on which such Subsidiary was originally designated as an
Unrestricted Subsidiary.
The foregoing provisions shall not prohibit: (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests
of Grove Investors in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Subsidiary of Grove Investors)
of, other Equity Interests of Grove Investors (other than any Disqualified
Stock); PROVIDED that the amount of any such net cash proceeds that are utilized
for any such redemption, repurchase, retirement, defeasance or other acquisition
shall be excluded from clause (c)(ii) of the preceding paragraph; (iii) the
defeasance, redemption, repurchase or other acquisition of subordinated
Indebtedness with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness; (iv) the payment of any dividend or making of any
distribution by a Subsidiary of Grove Investors to the holders of its Equity
Interests on a pro rata basis; (v) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of Grove Investors
or any Subsidiary of Grove Investors held by any former member of Grove
Investors' (or any of their Subsidiaries') Management Committee or any former
officer, employee or director of Grove Investors or any of its Subsidiaries
pursuant to the Grove Investors' or Holdings Operating Agreements or any equity
subscription agreement, stock option agreement, employment agreement or other
similar agreements and any dividends or distributions to Grove Investors to fund
such purchase, redemption or other acquisition or retirement; PROVIDED that (A)
the aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed (1) $5.0 million in any calendar year (with
unused amounts in any calendar year being carried over to succeeding calendar
years subject to a maximum (without giving effect to clause (2)) of $10.0
million plus (2) the aggregate cash proceeds received by Grove Investors,
Holdings or the Company during such calendar year from any reissuance of Equity
Interests by Grove Investors, Holdings or the Company to members of management
of Grove Investors and its Restricted Subsidiaries and (B) no Default or Event
of Default shall have occurred and be continuing immediately after such
transaction; PROVIDED, FURTHER that the aggregate cash proceeds referred to in
(2) above shall be excluded from clause (c)(ii) of the preceding paragraph; (vi)
so long as Grove Investors is a limited liability company either treated as a
partnership or disregarded as an entity separate from its owner for U.S. federal
income tax purposes (as evidenced by a certificate of an officer of Grove
Investors, prepared based on such officer's best knowledge, at least annually),
distributions to members of Grove Investors in an amount with respect to any
period after December 31, 1997 not to exceed the Tax Amount of Grove Investors
for such period; PROVIDED, HOWEVER, that such distributions shall be allowed to
be made quarterly based on an estimation and after the end of a taxable year
based on the partnership tax return of Grove Investors (or, if
44
Grove Investors is disregarded as an entity separate from its owner, its nearest
owner that is not so disregarded) for such taxable year (or at such other times
as reasonably appropriate including in connection with an audit adjustment),
taking into account any previous payments of Tax Amount for such taxable year
or, if Grove Investors becomes included in a consolidated tax group for U.S.
federal income tax purposes, payments to the common parent of the taxable group
in an amount, with respect to any period after December 31, 1997, not to exceed
the tax liability attributable to Grove Investors and its Subsidiaries on a
stand-alone basis for such period; (vii) any Investment to the extent that the
consideration therefor consists of the net cash proceeds of the concurrent issue
and sale (other than to a Restricted Subsidiary) of Equity Interests of Grove
Investors (other than any Disqualified Stock); (viii) so long as no Default or
Event of Default has occurred and is continuing and Grove Investors can incur at
least $1.00 of additional indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of Section 4.09 hereof, the
declaration and payment of dividends to holders of any class or series of
Disqualified Stock of Grove Investors issued after the date hereof in accordance
with Section 4.09 hereof; (ix) Investments made by Grove Investors or any of its
Restricted Subsidiaries within 30 days of the date hereof, the proceeds of which
are used to fund the Transactions or capitalize Restricted Subsidiaries; (x)
repurchases of Equity Interests deemed to occur upon exercise of stock options
if such Equity Interests represent a portion of the exercise price of such
options; (xi) Restricted Investments having an aggregate fair market value,
taken together with all other Restricted Investments made pursuant to this
clause (xi) that are at that time outstanding, not to exceed $100.0 million
(with the fair market value of each Investment being measured at the time made
and without giving effect to subsequent changes in value); (xii) distributions
or payments of Receivables Fees; and (xiii) Restricted Payments not to exceed
$50.0 million since the date hereof.
The Management Committee may designate any Restricted Subsidiary,
other than Grove Investors Capital, to be an Unrestricted Subsidiary if such
designation would not cause a Default. For purposes of making such
determination, all outstanding Investments by Grove Investors and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated shall be deemed to be Restricted Payments at the time of such
designation and shall reduce the amount available for Restricted Payments under
the first paragraph of this Section 4.07. All such outstanding Investments shall
be deemed to constitute Investments in an amount equal to the fair market value
of such Investments at the time of such designation. Such designation shall only
be permitted if such Restricted Payment would be permitted at such time and if
such Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
For purposes of determining compliance with this Section 4.07, in the
event that a Restricted Payment meets the criteria of more than one of the
exceptions described in (i) through (xiii) above or is entitled to be made
pursuant to the first paragraph of this Section 4.07, Grove Investors shall, in
its sole discretion, classify such Restricted Payment in any manner that
complies with this Section 4.07. The amount of all Restricted Payments (other
than cash) shall be the fair market value on the date of the Restricted Payment
of the asset(s) or securities proposed to be transferred or issued by Grove
Investors or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. The fair market value of any non-cash Restricted Payment
shall be determined by the Management Committee whose resolution with respect
thereto shall be delivered to the Trustee, such determination to be based upon
an opinion or appraisal issued by an accounting, appraisal or investment banking
firm of national standing if such fair market value exceeds $5.0 million. Not
later than the date of making any Restricted Payment, the Issuers shall deliver
to the Trustee an Officers' Certificate stating that such Restricted
45
Payment is permitted and setting forth the basis upon which the calculations
required by this Section 4.07 were computed, together with a copy of any
fairness opinion or appraisal required by this Indenture
SECTION 4.08. LIMITATION ON LEASES.
Grove Investors shall not, directly or indirectly, lease all or
substantially all of its properties or assets to any Person.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK.
Grove Investors shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "INCUR") any Indebtedness (including Acquired
Debt) and that Grove Investors shall not issue any Disqualified Stock and shall
not permit any of its Subsidiaries to issue any shares of Disqualified Stock;
PROVIDED, HOWEVER, that the Issuers may incur Indebtedness (including Acquired
Debt) or issue shares of Disqualified Stock and Grove Investors' Subsidiaries
may incur Indebtedness or issue preferred equity if the Fixed Charge Coverage
Ratio for Grove Investors' most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the date
on which such additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 1.75 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Disqualified Stock had been
issued, as the case may be, at the beginning of such four quarter period.
The provisions of the first paragraph of this Section 4.09 shall not
apply to the incurrence of any of the following items of Indebtedness
(collectively, "PERMITTED DEBT"):
(i) the incurrence by the Issuers and their Restricted Subsidiaries of
Indebtedness under the New Credit Facility; PROVIDED that the aggregate
principal amount of all term Indebtedness outstanding under the New Credit
Facility after giving effect to such incurrence does not exceed an amount equal
to $200.0 million plus (in the case of any refinancing thereof) the aggregate
amount of fees, underwriting discounts, premiums and other costs and expenses
incurred in connection with such refinancing less the aggregate amount of all
scheduled or mandatory repayments of the principal of any term Indebtedness
under the New Credit Facility (other than repayments that are immediately
reborrowed) that have been made since the date of this Indenture;
(ii) the incurrence by an Issuer and its Restricted Subsidiaries of
Indebtedness and letters of credit under Credit Facilities; PROVIDED that the
aggregate principal amount of all revolving credit Indebtedness (with letters of
credit being deemed to have a principal amount equal to the maximum face amount
thereunder) outstanding under all Credit Facilities after giving effect to such
incurrence does not exceed an amount equal to the greater of (A) the amount of
the Borrowing Base and (B) $125.0 million, less, in the case of clause (B), the
aggregate amount of all Net Proceeds of Asset Sales applied to permanently
reduce revolving credit commitments under the Credit Facility pursuant to
Section 4.10 hereof;
(iii) the incurrence by Grove Investors and its Restricted Subsidiaries
of the Existing Indebtedness;
46
(iv) (A) the incurrence by the Issuers of Indebtedness represented by
the Debentures sold in the Offering, (B) the incurrence by Holdings and Holdings
Capital of Indebtedness represented by the Holdings Debentures and (C) the
incurrence by Grove and Grove Capital of Indebtedness represented by the Senior
Subordinated Notes and the incurrence by the Subsidiary Guarantors (as defined
in the Senior Subordinated Note Indenture) of Indebtedness represented by the
guarantees of such Senior Subordinated Notes;
(v) the incurrence by Grove Investors or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations or similar financings, in each case
incurred for the purpose of financing all or any part of the purchase price or
cost of construction or improvement of property, plant or equipment used in the
business of Grove Investors or such Restricted Subsidiary, in an aggregate
principal amount not to exceed $20.0 million at any time outstanding;
(vi) the incurrence by Grove Investors or any of its Restricted
Subsidiaries of Indebtedness in connection with the acquisition of assets or a
new Subsidiary; PROVIDED that such Indebtedness was incurred by the prior owner
of such assets or such Subsidiary prior to such acquisition by Grove Investors
or one of its Restricted Subsidiaries and was not incurred in connection with,
or in contemplation of, such acquisition by Grove Investors or one of its
Restricted Subsidiaries; and PROVIDED further that the principal amount (or
accreted value, as applicable) of such Indebtedness, together with any other
outstanding Indebtedness incurred pursuant to this clause (vi) and any Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (vi), does not exceed $10.0
million;
(vii) the incurrence by Grove Investors or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance or replace Indebtedness (other
than intercompany Indebtedness) that was permitted by this Indenture to be
incurred under the first paragraph hereof or clauses (iii), (iv), (v), (vi) or
(x) of this paragraph;
(viii) the incurrence by Grove Investors or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among Grove Investors and
any of its Wholly Owned Subsidiaries, including a pledge of assets in connection
therewith; PROVIDED, HOWEVER, that (i) if one of the Issuers is the obligor on
such Indebtedness, such Indebtedness is expressly subordinated to the prior
payment in full in cash of all Obligations with respect to the Debentures and
(ii)(A) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than Grove Investors or a
Restricted Subsidiary thereof and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either Grove Investors or a Wholly Owned
Restricted Subsidiary thereof shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by Grove Investors or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause (viii);
(ix) the incurrence by Grove Investors or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing
or hedging (i) interest rate risk with respect to any floating rate Indebtedness
that is permitted by the terms of this Indenture to be outstanding, (ii) the
value of foreign currencies purchased or received by Grove Investors or its
Restricted Subsidiaries in the ordinary course of business as conducted by Grove
Investors or its Restricted Subsidiaries or (iii) commodity risk relating to
commodity agreements to the extent entered into in the ordinary course of
47
business to protect Grove Investors and its Restricted Subsidiaries from
fluctuations in the prices of raw materials used in its business;
(x) the incurrence by Grove Investors or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (x), not to exceed $80.0 million;
(xi) the incurrence by Grove Investors' Unrestricted Subsidiaries of
Non-Recourse Debt, PROVIDED, HOWEVER, that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to
constitute an incurrence of Indebtedness by a Restricted Subsidiary of Grove
Investors that was not permitted by this clause (xi);
(xii) the Guarantee by the Issuers or any of their Restricted
Subsidiaries of Indebtedness of Grove Investors or a Subsidiary of Grove
Investors, which Indebtedness was permitted to be incurred by another provision
of this Section 4.09;
(xiii) the incurrence of Indebtedness (including letters of credit) in
respect of workers' compensation claims, self insurance obligations,
performance, surety, bid or similar bonds and completion guarantees provided by
Grove Investors or a Restricted Subsidiary in the ordinary course of business
and consistent with past practices;
(xiv) the incurrence of Indebtedness, including Guarantees, by Grove
Investors or any of its Restricted Subsidiaries in connection with a Dealer
Financing Program;
(xv) the incurrence of Equipment Financing Guarantees; and
(xvi) the incurrence of Indebtedness arising from agreements of Grove
Investors or any Restricted Subsidiary providing for indemnification, adjustment
of purchase price or similar obligations, in each case, incurred or assumed in
connection with the disposition or acquisition of any business, assets or
Capital Stock of a Subsidiary; PROVIDED that the maximum aggregate liability of
such Indebtedness shall at no time exceed the gross proceeds actually received
by Grove Investors and its Restricted Subsidiaries in connection with any such
disposition or the gross proceeds actually paid by Grove Investors and its
Restricted Subsidiaries in connection with any such acquisition.
For purposes of determining compliance with this Section 4.09, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xvi) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Issuers shall, in their sole discretion, classify such item of Indebtedness
in any manner that complies with this Section 4.09. 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 Stock in the form of additional shares
of the same class of Disqualified Stock shall not be deemed to be an incurrence
of Indebtedness or an issuance of Disqualified Stock for purposes of this
Section 4.09; PROVIDED, in each such case, that the amount thereof is included
in Fixed Charges of Grove Investors as accrued.
48
SECTION 4.10. TRANSACTIONS WITH AFFILIATES.
Grove Investors shall not, and shall 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 (each of the foregoing, an "AFFILIATE TRANSACTION"), unless
(i) such Affiliate Transaction is on terms that are no less favorable to Grove
Investors or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by Grove Investors or such Restricted
Subsidiary with an unrelated Person and (ii) the Issuers deliver to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $2.0 million, a
resolution of the Management Committee set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Management Committee and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10.0 million, an opinion as to the
fairness to the Holders of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing. Notwithstanding the foregoing, the following items shall not be deemed
to be Affiliate Transactions: (i) any employment agreement, compensation or
employee benefit arrangements and incentive arrangements with any officer,
director, member or employee entered into by Grove Investors or any of its
Restricted Subsidiaries in the ordinary course of business of Grove Investors or
such Restricted Subsidiary, as well as customary change of control and severance
payments, (ii) transactions between or among the Issuers and/or their Restricted
Subsidiaries, (iii) payment of reasonable managers' and directors' fees to
Persons who are not otherwise Affiliates of the Issuers, (iv) Restricted
Payments, Permitted Investments and other payments and distributions that are
permitted by Section 4.07 hereof; (v) any Permitted Xxxxxx Group Transaction;
(vi) loans and advances to officers, directors and employees of Grove Investors
or any Restricted Subsidiary for travel, entertainment, moving and other
relocation expenses, in each case made in the ordinary course of business; (vii)
transactions permitted by the provisions of Section 4.14 hereof; (viii)
transactions permitted by clauses (xii) and (xiv) of Section 4.09 hereof; and
(ix) transactions pursuant to any contract or agreement in effect on the date of
this Indenture as the same may be amended, modified or replaced from time to
time so long as such amendment, modification or replacement is no less favorable
to Grove Investors and its Restricted Subsidiaries than the contract or
agreement as in effect on the date of this Indenture.
SECTION 4.11. LIENS.
The Issuers shall not, directly or indirectly, create, incur, assume
or suffer to exist any Lien securing Indebtedness or trade payables on any asset
now owned or hereafter acquired, or any income or profits therefrom or assign or
convey any right to receive income therefrom, except Permitted Liens
SECTION 4.12. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Issuers shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) their
corporate existence, and the corporate, limited liability company or other
existence of each of their Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Issuers or any such Subsidiary and (ii)
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the rights (charter and statutory), licenses and franchises of the Issuers and
their Subsidiaries; PROVIDED, HOWEVER, that the Issuers shall not be required to
preserve any such right, license or franchise, or the corporate, limited
liability company or other existence of any of their Subsidiaries, if the
Management Committee or Board of Directors, as applicable, shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Issuers and their Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Debentures.
SECTION 4.13. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of Debentures
shall have the right to require the Issuers to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Debentures pursuant
to the offer described below (the "CHANGE OF CONTROL OFFER") at an offer price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the date of purchase
(the "CHANGE OF CONTROL PAYMENT"). Within 30 days following any Change of
Control, the Issuers shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Debentures on the date specified in such notice, which date shall
be no earlier than 30 days and no later than 60 days from the date such notice
is mailed (the "CHANGE OF CONTROL PAYMENT DATE"), pursuant to the procedures
required by this Indenture and described in such notice. The Issuers shall
comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Debentures
as a result of a Change of Control. To the extent that the provisions of any
securities laws or regulations directly conflict with the provisions of this
Indenture relating to such Change of Control Offer, the Issuers shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations described in this Indenture by virtue thereof.
On the Change of Control Payment Date, the Issuers shall, to the
extent lawful, (1) accept for payment all Debentures or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Debentures or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee the Debentures so accepted together with an Officers'
Certificate stating the aggregate principal amount of Debentures or portions
thereof being purchased by the Issuers. The Paying Agent shall promptly mail to
each Holder of Debentures so tendered the Change of Control Payment for such
Debentures, and the Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Debenture equal in principal
amount to any unpurchased portion of the Debentures surrendered, if any;
PROVIDED that each such new Debenture will be in a principal amount of $1,000 or
an integral multiple thereof. The Issuers shall publicly announce the results
of the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
(b) Notwithstanding anything to the contrary in this Section 4.13, the
Issuers shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in this
Section 4.13 hereof and purchases all Debentures validly tendered and not
withdrawn under such Change of Control Offer.
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SECTION 4.14. SALES OF ACCOUNTS RECEIVABLE.
Grove Investors may, and any of its Restricted Subsidiaries may, sell
at any time and from time to time, accounts receivable and or Debentures
receivables and related assets to an Accounts Receivable Subsidiary; PROVIDED
that (i) the aggregate consideration received in each such sale is a least equal
to the aggregate fair market value of the receivables sold, as determined by the
Management Committee in good faith, (ii) no less than 80% of the consideration
received in each such sale consists of either cash or a promissory note (a
"PROMISSORY NOTE") which is subordinated to no Indebtedness or obligation other
than the financial institution or other entity providing the financing to the
Accounts Receivable Subsidiary with respect to such accounts receivable (the
"FINANCIER") or an Equity Interest in such Accounts Receivable Subsidiary;
PROVIDED FURTHER that the initial sale shall include all accounts receivable of
Grove Investors and/or its Restricted Subsidiaries that are party to such
arrangements that constitute eligible receivables under such arrangements, and
(iii) Grove Investors and its Restricted Subsidiaries shall sell all accounts
receivables that constitute eligible receivables under such arrangements to the
Accounts Receivable Subsidiary no less frequently than on a weekly basis.
Grove Investors (i) shall not permit any Accounts Receivable
Subsidiary to sell any accounts receivable purchased from Grove Investors or any
of its Restricted Subsidiaries to any other person except on an arms-length
basis and solely for consideration in the form of cash or Cash Equivalents, (ii)
shall not permit the Accounts Receivable Subsidiary to engage in any business or
transaction other than the purchase, financing and sale of accounts receivable
of Grove Investors and its Restricted Subsidiaries and activities incidental
thereto, (iii) shall not permit any Accounts Receivable Subsidiary to incur
Indebtedness in an amount in excess of the book value of such Accounts
Receivable Subsidiary's total assets, as determined in accordance with GAAP,
(iv) shall, at least as frequently as monthly, cause the Accounts Receivable
Subsidiary to remit to Grove Investors as payment on the Promissory Notes or a
dividend, all available cash or Cash Equivalents not held in a collection
account pledged to a Financier, to the extent not applied to pay or maintain
reserves for reasonable operating expenses of the Accounts Receivable Subsidiary
or to satisfy reasonable minimum operating capital requirements and (v) shall
not, and shall not permit any of its Subsidiaries to, sell accounts receivable
to any Accounts Receivable Subsidiary upon (1) the occurrence of a Default with
respect to Grove Investors and its Restricted Subsidiaries and (2) the
occurrence of certain events of bankruptcy or insolvency with respect to such
Accounts Receivable Subsidiary.
SECTION 4.15. SALE AND LEASEBACK TRANSACTIONS.
Grove Investors shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; PROVIDED that
Grove Investors or any of its Restricted Subsidiaries may enter into a sale and
leaseback transaction if (i) Grove Investors or such Restricted Subsidiary could
have (a) incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof and
(b) incurred a Lien to secure such Indebtedness pursuant to Section 4.11 hereof
and (ii) the gross cash proceeds of such sale and leaseback transaction are at
least equal to the fair market value (as determined in good faith by the
Management Committee and set forth in an Officers' Certificate delivered to the
Trustee) of the property that is the subject of such sale and leaseback
transaction. Notwithstanding the foregoing, Delta Manlift, S.A. and Grove
France, S.A. and its successor may enter into any sale and leaseback
transaction; PROVIDED that such sale and leaseback transaction is in the
ordinary course of business consistent with past practices as in effect on the
date of this Indenture and
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the aggregate amount of any Attributable Debt in connection with such
transactions does not exceed $4.0 million in any calendar year.
SECTION 4.16. RESTRICTION ON PREFERRED STOCK OF SUBSIDIARIES.
Grove Investors shall not permit any of its Restricted Subsidiaries to
issue any preferred stock (other than Holdings or the Company, which may issue
preferred stock that is not Disqualified Stock), or permit any Person to own or
hold an interest in any preferred stock of any such Subsidiary, except for
preferred stock issued to Grove Investors.
SECTION 4.17. RESTRICTIONS ON ACTIVITIES OF GROVE INVESTORS CAPITAL.
Grove Investors Capital shall not hold any assets, become liable for
any obligations or engage in any business activities; PROVIDED that Grove
Investors Capital may be a co-obligor with respect to Debentures issued pursuant
to this Indenture and engage in any activities directly related or necessary in
connection therewith.
SECTION 4.18. PAYMENTS FOR CONSENT.
Neither Grove Investors nor any of its Restricted Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Debentures for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Debentures unless such consideration is offered to be
paid or is paid to all Holders of the Debentures that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
Neither Issuer shall consolidate or merge with or into (whether or not
such Issuer is the surviving corporation), or sell, assign, transfer, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions, to another Person unless (i) such Issuer is the
surviving Person formed by or surviving any such consolidation or merger (if
other than one of the Issuers) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a Person or other
entity organized or existing under the laws of the United States, any state
thereof or the District of Columbia; (ii) the entity or Person formed by or
surviving any such consolidation or merger (if other than one of the Issuers) or
the entity or Person to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made assumes all the obligations of such
Issuer under the Registration Rights Agreement, the Debentures and this
Indenture pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee; (iii) immediately after such transaction no Default or Event of
Default exists; (iv) except in the case of a merger of one of the Issuers with
or into a Wholly Owned Subsidiary of Grove Investors or the Person formed by or
surviving any such consolidation or merger (if other than one of the Issuers),
or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made shall, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be
52
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of Section
4.09 hereof; and (v) Grove Investors has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and
such supplemental indenture complies with this Indenture and that all conditions
precedent provided for in this Indenture relating to such transaction have been
complied with. Notwithstanding the foregoing, Grove Investors is permitted to
reorganize as a corporation in accordance with the procedures established in
this Indenture (and Grove Investors Capital may thereafter liquidate); PROVIDED
that Grove Investors shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the Trustee confirming that such
reorganization (and, if applicable, liquidation of Grove Investors Capital) is
not adverse to Holders of the Debentures (it being recognized that such
reorganization shall not be deemed adverse to the Holders of the Debentures
solely because (i) of the accrual of deferred tax liabilities resulting from
such reorganization or (ii) the successor or surviving corporation (a) is
subject to income tax as a corporate entity or (b) is considered to be an
"includible corporation" of an affiliated group of corporations within the
meaning of the Code or any similar state or local law) and certain other
conditions are satisfied.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Issuers in accordance with Section 5.01 hereof, the successor Person
formed by such consolidation or into or with which an Issuer is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to such "Issuer" shall refer instead to
the successor Person and not to such Issuer), and may exercise every right and
power of the Issuers under this Indenture with the same effect as if such
successor Person had been named as such Issuer herein; PROVIDED, HOWEVER, that
the predecessor Issuer shall not be relieved from the obligation to pay the
principal of and interest on the Debentures except in the case of a sale of all
of an Issuer's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
The following constitute an "EVENT OF DEFAULT":
(a) default for 30 days in the payment when due of interest on, or
Liquidated Damages with respect to, the Debentures;
(b) default in payment when due of the principal of or premium, if any, on
the Debentures;
(c) failure by Grove Investors or any of its Restricted Subsidiaries for
30 days after receipt by the Issuers of notice from the Trustee or by the
Issuers and the Trustee of notice from the Holders of at least 25% in principal
amount of Debentures then outstanding to comply with the provisions described
under Sections 4.07, 4.09 or 4.13;
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(d) failure by Grove Investors or any of its Restricted Subsidiaries for
60 days after receipt by the Issuers of notice from the Trustee or by the
Issuers and the Trustee of notice from the Holders of at least 25% in principal
amount of Debentures then outstanding to comply with any of its other agreements
in this Indenture or the Debentures;
(e) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by Grove Investors or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by Grove Investors or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the date of this Indenture, which default
(i) is caused by a failure to pay principal of or premium, if any, or
interest on such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a "PAYMENT
DEFAULT") or
(ii) results in the acceleration of such Indebtedness prior to its stated
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $10.0 million or more and provided that in the case
of any guarantees, a default shall not be deemed to occur unless Grove
Investors or such Restricted Subsidiary, as applicable, defaults in its
payment obligations under such guarantee after demand has been made in
accordance with the terms of such guarantee;
(f) failure by Grove Investors or any of its Restricted Subsidiaries to
pay final judgments aggregating in excess of $10.0 million (net of any amount
with respect to which a reputable insurance company with assets over $100.0
million has acknowledged liability in writing), which judgments are not paid,
discharged or stayed for a period of 60 days;
(g) failure by the Company or its subsidiaries to apply the proceeds from
the Offering as set forth under the caption "Use of Proceeds" in the Offering
Memorandum prior to the 10th Business Day after the date hereof;
(h) (1) Grove Investors, (2) any Significant Subsidiary which is a
Restricted Subsidiary (other than an Accounts Receivable Subsidiary) or (3) any
group of Restricted Subsidiaries (other than an Accounts Receivable Subsidiary)
that, taken as a whole, would constitute a Significant Subsidiary (each, a
"RELEVANT ENTITY") pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due, or
54
(i) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against a Relevant Entity in an involuntary case;
(ii) appoints a Custodian of a Relevant Entity; or
(iii) orders the liquidation of a Relevant Entity;
and the order or decree remains unstayed and in effect for 60 consecutive days.
SECTION 6.02. ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Debentures
may declare all the Debentures to be due and payable immediately; PROVIDED that
so long as any Indebtedness permitted to be incurred by any of Grove Investors'
Restricted Subsidiaries shall be outstanding, such acceleration shall not be
effective until the earlier of (i) an acceleration of any such Indebtedness of
Grove Investors' Restricted Subsidiaries or (ii) ten Business Days after receipt
by the Issuers of written notice of such acceleration. Notwithstanding the
foregoing, in the case of an Event of Default described in 6.01(h) herein, all
outstanding Debentures shall become due and payable without further action or
notice.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Debentures or to enforce the performance of any
provision of the Debentures or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Debenture in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
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SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Debentures by notice to the Trustee may on behalf of the
Holders of all of the Debentures waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal of, premium and Liquidated Damages, if any, or
interest on, the Debentures (including in connection with an offer to purchase)
(PROVIDED, HOWEVER, that the Holders of a majority in aggregate principal amount
of the then outstanding Debentures may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Debentures may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Debentures or that may
involve the Trustee in personal liability. The Trustee may take any other
action which it deems proper which is not inconsistent with any such discretion.
Notwithstanding any provisions to the contrary in this Indenture, the Trustee
shall not be obligated to take any action with respect to the provisions of the
last paragraph of Section 6.02 hereof unless directed to do so pursuant to this
Section 6.05.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Debenture may pursue a remedy with respect to this
Indenture or the Debentures only if:
(a) the Holder of a Debenture gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Debentures make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Debenture or Holders of Debentures offer and,
if requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Debentures do not give the Trustee a
direction inconsistent with the request.
A Holder of a Debenture may not use this Indenture to prejudice the
rights of another Holder of a Debenture or to obtain a preference or priority
over another Holder of a Debenture.
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SECTION 6.07. RIGHTS OF HOLDERS OF DEBENTURES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Debenture to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Debenture, on or after the
respective due dates expressed in the Debenture (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Issuers for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Debentures and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
all other amounts due to the Trustee pursuant to Section 7.07 hereof.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Debentures allowed in any judicial proceedings relative to the
Issuers (or any other obligor upon the Debentures), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any Holder, or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
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FIRST: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
SECOND: to Holders of Debentures for amounts due and unpaid on the
Debentures for principal, premium and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Debentures for principal, premium and Liquidated Damages,
if any and interest, respectively; and
THIRD: to the Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Debentures pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Debenture pursuant to Section 6.07 hereof, or a suit by Holders of more than 10%
in principal amount of the then outstanding Debentures.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
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(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Issuers. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or documents, but the Trustee, in its discretion may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Issuers, personally or by agent or attorney.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
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(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from an Issuer shall be sufficient if signed by an
Officer of such Issuer. A permissive right granted to the Trustee hereunder
shall not be deemed to be an obligation to act.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(g) The Trustee shall not be charged with the knowledge of any Default or
Event of Default unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of such Default or Event of Default, or (ii) written
notice of Default of such Event of Default shall have been given to the Trustee
by the Issuers or by any Holder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Debentures and may otherwise deal with the Issuers or any
Affiliate of the Issuers with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Debentures, it shall not
be accountable for the Issuers' use of the proceeds from the Debentures or any
money paid to the Issuers or upon the Issuers' direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the
Debentures or any other document in connection with the sale of the Debentures
or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Debentures a notice
of the Default or Event of Default within 90 days after it occurs. Except in
the case of a Default or Event of Default in payment of principal of, premium,
if any, or interest on any Debenture, the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Debentures.
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SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE DEBENTURES.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Debentures remain outstanding,
the Trustee shall mail to the Holders of the Debentures a brief report dated as
of such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also shall
comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Debentures shall be mailed to the Issuers and filed with the Commission and each
stock exchange on which the Debentures are listed in accordance with TIA Section
313(d). The Issuers shall promptly notify the Trustee when the Debentures are
listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Issuers shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Issuers shall, jointly and severally, indemnify the Trustee
against any and all losses, liabilities or expenses incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture, including the costs and expenses of enforcing this Indenture
against the Issuers (including this Section 7.07) and defending itself against
any claim (whether asserted by the Issuers or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability or expense may
be attributable to its negligence or bad faith. The Trustee shall notify the
Issuers promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Issuers shall not relieve the Issuers of their
obligations hereunder. The Issuers shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Issuers
shall pay the reasonable fees and expenses of such counsel. The Issuers need
not pay for any settlement made without their consent, which consent shall not
be unreasonably withheld.
The obligations of the Issuers under this Section 7.07 shall survive
the resignation and removal of the Trustee and the satisfaction and discharge of
this Indenture.
To secure the Issuers' payment obligations in this Section, the
Trustee shall have a Lien prior to the Debentures on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Debentures. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
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The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Issuers. The Holders of Debentures
of a majority in principal amount of the then outstanding Debentures may remove
the Trustee by so notifying the Trustee and the Issuers in writing. The Issuers
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Debentures may appoint
a successor Trustee to replace the successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, or
the Holders of Debentures of at least 10% in principal amount of the then
outstanding Debentures may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Debenture who
has been a Holder of a Debenture for at least six months, fails to comply with
Section 7.10, such Holder of a Debenture may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Debentures. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, PROVIDED
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Issuers' obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
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SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUERS.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Issuers may, at the option of their Management Committee or Board
of Directors, as applicable, evidenced by a resolution set forth in an Officers'
Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof be
applied to all outstanding Debentures upon compliance with the conditions set
forth below in this Article Eight.
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SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Issuers shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Debentures on
the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, Legal Defeasance means that the Issuers shall
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Debentures, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all their
other obligations under such Debentures and this Indenture (and the Trustee, on
demand of and at the expense of the Issuers, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders
of outstanding Debentures to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest on such Debentures
when such payments are due, (b) the Issuers' obligations with respect to such
Debentures under Article 2 and Section 4.02 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Issuers'
obligations in connection therewith and (d) this Article Eight. Subject to
compliance with this Article Eight, the Issuers may exercise their option under
this Section 8.02 notwithstanding the prior exercise of its option under Section
8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Issuers shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from their
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.13, 4.14, 4.15, 4.16, 4.17 and 4.18 hereof with respect to the
outstanding Debentures on and after the date the conditions set forth in Section
8.04 are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Debentures
shall thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Debentures shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding
Debentures, the Issuers may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such
Debentures shall be unaffected thereby. In addition, upon the Issuers' exercise
under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(c) through 6.01(f) hereof shall not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Debentures:
In order to exercise either Legal Defeasance or Covenant Defeasance:
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(a) the Issuers must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium and Liquidated Damages, if any,
and interest on the outstanding Debentures on the stated date for payment
thereof or on the applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.02 hereof, the Issuers
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Issuers have
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable U.S. federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Debentures will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Legal Defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Issuers
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Debentures will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit (other than a Default or Event of Default resulting
from the incurrence of Indebtedness all or a portion of the proceeds of which
will be used to defease the Debentures pursuant to this Article Eight
concurrently with such incurrence) or insofar as Sections 6.01(h) or 6.01(i)
hereof is concerned, at any time in the period ending on the 91st day after the
date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Issuers or any of their
Subsidiaries is a party or by which the Issuers or any of their Subsidiaries is
bound;
(f) the Issuers shall have delivered to the Trustee an Opinion of Counsel
(which may be subject to customary exceptions) to the effect that on the 91st
day following the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Issuers shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuers with the intent
of preferring the Holders over any other creditors of the Issuers or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Issuers; and
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(h) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"TRUSTEE") pursuant to Section 8.04 hereof in respect of the outstanding
Debentures shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Debentures and this Indenture, to the payment, either
directly or through any Paying Agent (including the Issuers acting as Paying
Agent) as the Trustee may determine, to the Holders of such Debentures of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Issuers shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Debentures.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon the request
of the Issuers any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06. REPAYMENT TO ISSUERS.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment of the principal of, premium, if any,
or interest on any Debenture and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Issuers on their request or (if then held by the Issuers) shall be
discharged from such trust; and the Holder of such Debenture shall thereafter,
as an unsecured creditor, look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuer as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Issuers cause to be
published once, in THE NEW YORK TIMES and THE WALL STREET JOURNAL (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Issuers.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by
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reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Issuers' obligations under this Indenture and the Debentures shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.02 or
8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 8.02 or 8.03 hereof, as the case may
be; PROVIDED, HOWEVER, that, if the Issuers make any payment of principal of,
premium, if any, or interest on any Debenture following the reinstatement of
their obligations, the Issuers shall be subrogated to the rights of the Holders
of such Debentures to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF DEBENTURES.
Notwithstanding Section 9.02 of this Indenture, the Issuers and the
Trustee may amend or supplement this Indenture or the Debentures without the
consent of any Holder of a Debenture:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Debentures in addition to or in place of
certificated Debentures or to alter the provisions of Article 2 hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder;
(c) to provide for the assumption of the Issuers' obligations to the
Holders of the Debentures by a successor to the Issuers pursuant to Article 5
hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Debentures or that does not adversely affect the
legal rights hereunder of any Holder of the Debenture;
(e) to comply with requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA; or
(f) to provide for the issuance of additional Debentures in accordance
with the limitations set forth in this Indenture as of the date hereof.
Upon the request of the Issuers accompanied by a resolutions of their
Management Committee or Board of Directors, as applicable, authorizing the
execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Issuers in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this Indenture
or otherwise.
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SECTION 9.02. WITH CONSENT OF HOLDERS OF DEBENTURES.
Except as provided below in this Section 9.02, the Issuers and the
Trustee may amend or supplement this Indenture (including Section 4.13 hereof)
and the Debentures may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Debentures (including
additional Debentures, if any) then outstanding voting as a single class
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Debentures), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium, if any, or interest on
the Debentures, except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this Indenture or the
Debentures may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Debentures (including additional
Debentures, if any) voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Debentures).
Upon the request of the Issuers accompanied by a resolution of their
Management Committee or Board of Directors, as applicable, authorizing the
execution of any such amended or supplemental indenture, and upon the filing
with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Debentures as aforesaid, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee shall join with the
Issuers in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Debentures
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuers shall mail to the Holders of Debentures affected thereby
a notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuers to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Debentures (including additional
Debentures, if any) then outstanding voting as a single class may waive
compliance in a particular instance by the Issuers with any provision of this
Indenture or the Debentures. However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Debentures held by a non-consenting Holder):
(a) reduce the principal amount of Debentures whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Debenture
or alter or waive any of the provisions with respect to the redemption of the
Debentures except as provided above with respect to Sections 4.13 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Debenture;
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(d) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Debentures (except a rescission of
acceleration of the Debentures by the Holders of at least a majority in
aggregate principal amount of the then outstanding Debentures (including
additional Debentures, if any) and a waiver of the payment default that resulted
from such acceleration);
(e) make any Debenture payable in money other than that stated in the
Debentures;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Debentures to receive
payments of principal of or interest on the Debentures; or
(g) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Debentures
shall be set forth in a amended or supplemental indenture that complies with the
TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Debenture is a continuing consent by the Holder of a
Debenture and every subsequent Holder of a Debenture or portion of a Debenture
that evidences the same debt as the consenting Holder's Debenture, even if
notation of the consent is not made on any Debenture. However, any such Holder
of a Debenture or subsequent Holder of a Debenture may revoke the consent as to
its Debenture if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF DEBENTURES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Debenture thereafter authenticated. The Issuers in
exchange for all Debentures may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Debentures that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Debenture
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article Nine if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Issuers may not sign an amendment or supplemental Indenture until the
Management Committee or Board of Directors, as applicable, approves it. In
executing any amended or supplemental indenture, the Trustee shall be entitled
to receive and (subject to Section 7.01 hereof) shall
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be fully protected in relying upon, in addition to the documents required by
Section 11.04 hereof, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Issuers or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by
first-class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the others' address:
If to the Issuers:
Grove Investors LLC
000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No. (000) 000-0000
Attention: Xxxx X. Xxxxxxx
If to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No. (000) 000-0000
Attention: Xxxx Xxxxxxxx
The Issuers or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
70
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next-day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuers mail a notice or communication to Holders, they shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATION BY HOLDERS OF DEBENTURES WITH OTHER HOLDERS OF
DEBENTURES.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Debentures.
The Issuers, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuers to the Trustee to take
any action under this Indenture, the Issuers shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(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 or opinion are based;
71
(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 to express an
informed opinion as to whether or not such covenant or condition 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.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, MEMBERS
AND STOCKHOLDERS.
No director, officer, employee, incorporator, member or stockholder of
the Issuers, as such, shall have any liability for any obligations of the
Issuers under the Debentures or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Debentures by accepting a Debenture waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Debentures.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
SECTION 10.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE DEBENTURES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Issuers or their Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 10.10. SUCCESSORS.
All agreements of the Issuers in this Indenture and the Debentures
shall bind their successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 10.11. SEVERABILITY.
In case any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
72
SECTION 10.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
73
Dated as of April 29, 1998
SIGNATURES
Very truly yours,
GROVE INVESTORS, LLC
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title:
GROVE INVESTORS CAPITAL, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title:
UNITED STATES TRUST COMPANY OF NEW YORK,
AS TRUSTEE
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title:
74
EXHIBIT A-1
(Face of Debenture)
141/2% Senior Debentures due 2010
No. ___ $____________________
CUSIP XX. 00000X XX0
Xxxxx Investors LLC and Grove Investors Capital, Inc. promise to pay
to ______________________________ or registered assigns, the principal sum of
________________ Dollars on May 1, 2010.
Interest Payment Dates: February 1, May 1, August 1 and November 1
Record Dates: January 15, April 15, July 15 and October 15
GROVE INVESTORS LLC
By:
-----------------------------------
Name:
Title:
GROVE INVESTORS CAPITAL, INC.
By:
-----------------------------------
Name:
Title:
Dated:
-------------
This is one of the [Global]
Debentures referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
-----------------------------------
Authorized Signatory
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(Back of Debenture)
14 1/2% Senior Debentures due 2010
[Unless and until it is exchanged in whole or in part for Debentures
in definitive form, this Debenture may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) ("XXX"), to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as may be requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such other entity as may be requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the
registered owner hereof, Cede & Co., has an interest herein.](1)
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S THEREUNDER. THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUERS THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) IN
THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR") THAT PRIOR TO SUCH TRANSFER, FURNISHES THE
TRUSTEE WITH A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN $250,000, AN
OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF
-----------------
(1) THIS PARAGRAPH SHOULD BE INCLUDED ONLY IF THE DEBENTURE IS ISSUED IN GLOBAL
FORM.
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THE ISSUERS SO REQUEST), (2) TO THE ISSUERS OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.](2)
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Grove Investors LLC, a Delaware limited liability company
("Grove Investors") and Grove Investors Capital, Inc., a Delaware corporation
("Grove Investors Capital" and together with Grove Investors, the "Issuers"),
promise to pay interest on the principal amount of this Debenture at 14 1/2% per
annum from April 29, 1998 until maturity and shall pay the Liquidated Damages
payable pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Issuers will pay interest and Liquidated Damages, if any, quarterly
on February 1, May 1, August 1 and November 1 (each an "Interest Payment Date")
of each year, or if any such day is not a Business Day, on the next succeeding
Business Day. Interest on the Debentures will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the date
of issuance; PROVIDED that if there is no existing Default in the payment of
interest, and if this Debenture is authenticated between a record date referred
to on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; PROVIDED FURTHER,
that the first Interest Payment Date shall be August 1, 1998. The Issuers shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuers will pay interest on the Debentures
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Debentures at the close of business on the January 15,
April 15, July 15 or October 15 next preceding the Interest Payment Date, even
if such Debentures are cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The Debentures will be payable as to principal,
premium and Liquidated Damages, if any, and interest at the office or agency of
the Issuers maintained for such purpose within or without the City and State of
New York, or, at the option of the Issuers, payment of interest and Liquidated
Damages may be made by check mailed to the Holders at their addresses set forth
in the register of Holders; PROVIDED that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest, premium and Liquidated Damages on, all Global Debentures and all other
Debentures the Holders of which shall have provided wire transfer instructions
to the Issuers or the Paying Agent. Such payment, shall be made, at the option
of the Issuers, in the form of additional Debentures or cash, and if made in
cash, in
------------------
(2) THIS PARAGRAPH SHOULD BE REMOVED UPON THE EXCHANGE OF DEBENTURES FOR NEW
DEBENTURES IN THE EXCHANGE OFFER OR UPON THE REGISTRATION OF THE DEBENTURES
PURSUANT TO THE TERMS OF THE REGISTRATION RIGHTS AGREEMENT.
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such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, United States Trust Company of
New York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent or Registrar without notice
to any Holder. The Issuers or any of their Subsidiaries may act in any such
capacity.
4. INDENTURE. The Issuers issued the Debentures under an Indenture dated
as of April 29, 1998 ("Indenture") by and among the Issuers and the Trustee.
The terms of the Debentures include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb). The Debentures are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Debenture
conflicts with the express provisions of the Indenture, the provisions of the
indenture shall govern and be controlling. The Debentures are general unsecured
Obligations of the Issuers limited to $300,000,000 in aggregate principal
amount.
5. OPTIONAL REDEMPTION.
(a) The Issuers shall have the option to redeem the Debentures, in
whole or in part, upon not less than 30 nor more than 60 days' notice, in cash
at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the applicable redemption date, if redeemed during the twelve-month
period beginning on May 1 of the years indicated below:
YEAR PERCENTAGE
2003 . . . . . . . . . . . . . . . . . . . . . . . . 107.250%
2004 . . . . . . . . . . . . . . . . . . . . . . . . 104.833%
2005 . . . . . . . . . . . . . . . . . . . . . . . . 102.417%
2006 and thereafter . . . . . . . . . . . . . . . . . 100.000 %
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to May 1, 2003, the Issuers may redeem all but
not less than all of the aggregate principal amount of Debentures originally
issued at a redemption price equal to 114.5% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
redemption date.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Issuers shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Debentures.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Issuers shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Debentures at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Issuers shall mail a
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notice to each Holder setting forth the procedures governing the Change of
Control Offer as required by the Indenture.
(b) Holders of Debentures that are the subject of an offer to
purchase will receive a Change of Control Offer or Asset Sale Offer from the
Issuers prior to any related purchase date and may elect to have such Debentures
purchased by completing the form titled "Option of Holder to Elect Purchase"
appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Debentures are to be redeemed at its registered address. Debentures in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Debentures held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on
Debentures or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Debentures are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Debentures may be registered and Debentures may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Issuers may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Issuers need not
exchange or register the transfer of any Debenture or portion of a Debenture
selected for redemption, except for the unredeemed portion of any Debenture
being redeemed in part. Also, the Issuers need not exchange or register the
transfer of any Debentures for a period of 15 days before a selection of
Debentures to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Debenture may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, or the Debentures may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Debentures and additional Debentures, if any, voting as a single class, and any
existing default or compliance with any provision of the Indenture, the
Subsidiary Guarantees or the Debentures may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Debentures and
additional Debentures, if any, voting as a single class. Without the consent of
any Holder of a Debenture, the Indenture, or the Debentures may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Debentures in addition to or in place of certificated Debentures,
to provide for the assumption of the Issuers' obligations to Holders of the
Debentures in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Debentures or
that does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act, or to
provide for the issuance of additional Debentures in accordance with the
limitations set forth in the Indenture.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest or Liquidated Damages on the
Debentures; (ii) default in payment when due of principal of or premium, if any,
on the Debentures when the same becomes due and payable at
A-1-5
maturity, upon redemption (including in connection with an offer to purchase) or
otherwise, (iii) failure by the Issuers to comply with Section 4.07, 4.09, or
4.13 of the Indenture; (iv) failure by the Issuers or any of their Restricted
Subsidiaries for 30 days after notice to the Issuers by the Trustee or the
Holders of at least 25% in principal amount of the Debentures (including
additional Debentures, if any) then outstanding voting as a single class to
comply with certain other agreements in the Indenture or the Debentures; (v)
default under certain other agreements relating to Indebtedness of the Issuers
or any of its Restricted Subsidiaries which default results in the acceleration
of such Indebtedness prior to its express maturity; (vi) certain final judgments
for the payment of money that remain undischarged for a period of 60 days; (vii)
failure by the Company or its Subsidiaries to apply the proceeds from the
Offering as set forth under the caption "Use of Proceeds" in the Offering
Memorandum relating to the Debentures prior to the 10th Business Day after the
date of the Indenture; and (viii) certain events of bankruptcy or insolvency
with respect to the Issuers or any of their Significant Subsidiaries. If any
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Debentures may declare all
the Debentures to be due and payable immediately; PROVIDED that so long as any
Indebtedness permitted to be incurred by any of Grove Investors' Restricted
Subsidiaries shall be outstanding, such acceleration shall not be effective
until the earlier of (i) an acceleration of any such Indebtedness of Grove
Investors' Restricted Subsidiaries or (ii) ten Business Days after receipt by
the Issuers of written notice of such acceleration. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Debentures will become due and payable
without further action or notice. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Debentures may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Debentures notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the
Debentures then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Debentures waive any existing Default or Event of Default
and its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Debentures. The
Issuers are required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Issuers are required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Issuers or their Affiliates, and may otherwise deal with the Issuers or
their Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A member, director, officer, employee,
incorporator or stockholder of the Issuers, as such, shall not have any
liability for any obligations of the Issuers under the Debentures or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Debenture waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Debentures.
15. AUTHENTICATION. This Debenture shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT
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TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL DEBENTURES AND
RESTRICTED DEFINITIVE DEBENTURES. In addition to the rights provided to Holders
of Debentures under the Indenture, Holders of Restricted Global Debentures and
Restricted Definitive Debentures shall have all the rights set forth in the
Registration Rights Agreement dated as of April 29, 1998, between the Issuers
and the parties named on the signature pages thereof or, in the case of
additional Debentures, Holders of Restricted Global Debentures and Restricted
Definitive Debentures shall have the rights set forth in one or more
registration rights agreements, if any, between the Issuers and the other
parties thereto, relating to rights given by the Issuers to the purchasers of
any additional Debentures (collectively, the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Debentures and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Debentures
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
The Issuers will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Grove Investors LLC
000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
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ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we) assign
and transfer this Debenture to (Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Debenture on the books of the Issuers. The agent may
substitute another to act for him.
Date:
----------------
Your Signature:
--------------------------------------------
(Sign exactly as your name appears on the face of this Debenture)
Signature Guarantee:
------------------------------
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased by the Issuers
pursuant to Section 4.10 of the Indenture, check the box below:
/ / Section 4.10
If you want to elect to have only part of the Debenture purchased by
the Issuers pursuant to Section 4.10 of the Indenture, state the amount you
elect to have purchased: $________
Date:
---------------------
Your Signature:
---------------------------------------------
(Sign exactly as your name appears on the face of this Debenture)
Signature Guarantee:
------------------------------------------
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SCHEDULE OF TRANSFERS OR EXCHANGES OF INTERESTS IN THE GLOBAL DEBENTURE (3)
The following transfers or exchanges of a part of this Global
Debenture for an interest in another Global Debenture or for a Definitive
Debenture, or transfers or exchanges of a part of another Global Debenture or
Definitive Debenture for an interest in this Global Debenture, have been made:
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase in Debenture authorized officer
Principal Amount Principal Amount following such of Trustee or
of this Global of this Global decrease (or Debenture
Date of Exchange Debenture Debenture increase) Custodian
--------------------------------------------------------------------------------------------------
---------------------------------
(3) THIS SCHEDULE SHOULD BE INCLUDED ONLY IF THE DEBENTURE IS ISSUED IN GLOBAL
FORM.
X-0-00
XXXXXXX X-0
(Face of Regulation S Temporary Global Debenture)
14 1/2% Senior Debentures due 2010
No. ___ $___________________
CUSIP NO.
Grove Investors LLC and Grove Investors Capital, Inc., promise to pay
to _____________________ or registered assigns, the principal sum of ________
Dollars on __________, 2010.
Interest Payment Dates: January 1, May 1, August 1 and November 1
Record Dates: January 15, April 15, July 15 and October 15
GROVE INVESTORS LLC
BY:
-----------------------------
Name:
Title:
GROVE INVESTORS CAPITAL, INC.
BY:
-----------------------------
Name:
Title:
Dated:
-------------------
This is one of the [Global]
Senior Subordinated Debentures referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
-----------------------------
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(Back of Regulation S Temporary Global Debenture)
14 1/2% Senior Debentures due 2010
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL DEBENTURE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED DEBENTURES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR
THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL DEBENTURE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEBENTURES IN
DEFINITIVE FORM, THIS DEBENTURE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX
XXXX) ("XXX"), TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S THEREUNDER. THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUERS THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) IN
THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE
FORM OF WHICH CAN BE OBTAINED FROM
A-2-2
THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (e) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE ISSUERS SO REQUEST), (2) TO THE ISSUERS
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.](1)
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Grove Investors LLC, a Delaware limited liability company
("Grove Investors") and Grove Investors Capital, Inc., Delaware corporation
("Grove Investors Capital" and together with Grove Investors, the "Issuers"),
promise to pay interest on the principal amount of this Debenture at 141/2% per
annum from April 29, 1998 until maturity and shall pay the Liquidated Damages,
if any, payable pursuant to Section 5 of the Registration Rights Agreement
referred to below. The Issuers will pay interest and Liquidated Damages
quarterly on February 1, May 1, August 1 and November 1 (each an "Interest
Payment Date") of each year, or if any such day is not a Business Day, on the
next succeeding Business Day. Interest on the Debentures will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; PROVIDED that if there is no existing Default
in the payment of interest, and if this Debenture is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; PROVIDED, FURTHER, that the first Interest Payment Date shall be August 1,
1998. The Issuers shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Debenture is exchanged for
one or more Regulation S Permanent Global Debentures, the Holder hereof shall
not be entitled to receive payments of interest hereon; until so exchanged in
full, this Regulation S Temporary Global Debenture shall in all other respects
be entitled to the same benefits as other Debentures under the Indenture.
2. METHOD OF PAYMENT. The Issuers will pay interest on the Debentures
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Debentures at the close of business on the January 15,
April 15, July 15 and October 15 next preceding the Interest
-----------------------------
(1) THIS PARAGRAPH SHOULD BE REMOVED UPON THE EXCHANGE OF DEBENTURES FOR NEW
DEBENTURES IN THE EXCHANGE OFFER OR UPON THE REGISTRATION OF THE DEBENTURES
PURSUANT TO THE TERMS OF THE REGISTRATION RIGHTS AGREEMENT.
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Payment Date, even if such Debentures are cancelled after such record date and
on or before such Interest Payment Date, except as provided in Section 2.12 of
the Indenture with respect to defaulted interest. The Debentures will be
payable as to principal, premium, interest and Liquidated Damages at the office
or agency of the Issuers maintained for such purpose within or without the City
and State of New York, or, at the option of the Issuers, payment of interest and
Liquidated Damages may be made by check mailed to the Holders at their addresses
set forth in the register of Holders; PROVIDED that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest, premium and Liquidated Damages on, all Global Debentures and all other
Debentures the Holders of which shall have provided wire transfer instructions
to the Issuers or the Paying Agent. Such payment shall be made, at the option
of the Issuers, in the form of additional Debentures or cash, and if made in
cash, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, United States Trust Company of
New York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent or Registrar without notice
to any Holder. The Issuers or any of their Subsidiaries may act in any such
capacity.
4. INDENTURE. The Issuers issued the Debentures under an Indenture dated
as of April 29, 1998 ("Indenture") between the Issuers and the Trustee. The
terms of the Debentures include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb). The Debentures are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Debentures are general unsecured Obligations of
the Issuers limited to $300,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION.
(a) The Issuers shall have the option to redeem the Debentures, in
whole or in part, upon not less than 30 nor more than 60 days' notice, in cash
at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the applicable redemption date, if redeemed during the twelve-month
period beginning on May 1 of the years indicated below:
YEAR PERCENTAGE
2003 . . . . . . . . . . . . . 107.250%
2004 . . . . . . . . . . . . . 104.833%
2005 . . . . . . . . . . . . . 102.417%
2006 and thereafter . . . . . . 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to May 1, 2003, the Issuers may redeem all but
not less than all of the aggregate principal amount of Debentures originally
issued at a redemption price equal to 114.5% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
redemption date.
A-2-4
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Issuers shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Debentures.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Issuers shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Debentures at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Issuers shall mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the
Indenture.
(b) Holders of Debentures that are the subject of an offer to
purchase will receive a Change of Control Offer or Asset Sale Offer from the
Issuers prior to any related purchase date and may elect to have such Debentures
purchased by completing the form titled "Option of Holder to Elect Purchase"
appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Debentures are to be redeemed at its registered address.
Debentures in denominations larger than $1,000 may be redeemed in part but only
in whole multiples of $1,000, unless all of the Debentures held by a Holder are
to be redeemed. On and after the redemption date interest ceases to accrue on
Debentures or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Debentures are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Debentures may be registered and
Debentures may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Issuers may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Issuers
need not exchange or register the transfer of any Debenture or portion of a
Debenture selected for redemption, except for the unredeemed portion of any
Debenture being redeemed in part. Also, it need not exchange or register the
transfer of any Debentures for a period of 15 days before a selection of
Debentures to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
This Regulation S Temporary Global Debenture is exchangeable in whole
or in part for one or more Global Debentures only (i) on or after the
termination of the 40-day restricted period (as defined in Regulation S) and
(ii) upon presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture. Upon exchange of this
Regulation S Temporary Global Debenture for one or more Global Debentures, the
Trustee shall cancel this Regulation S Temporary Global Debenture.
10. PERSONS DEEMED OWNERS. The registered Holder of a Debenture may
be treated as its owner for all purposes.
A-2-5
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Debentures may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Debentures and additional Debentures, if any, voting as a single
class, and any existing default or compliance with any provision of the
Indenture or the Debentures may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Debentures and additional
Debentures, if any, voting as a single class. Without the consent of any Holder
of a Debenture, the Indenture or the Debentures may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Debentures in addition to or in place of certificated Debentures, to provide for
the assumption of the Issuers' obligations to Holders of the Debentures in case
of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Debentures or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act, or to provide
for the issuance of additional Debentures in accordance with the limitations set
forth in the Indenture.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest or Liquidated Damages on the
Debentures; (ii) default in payment when due of principal of or premium, if any,
on the Debentures when the same becomes due and payable at maturity, upon
redemption (including in connection with an offer to purchase) or otherwise,
(iii) failure by the Issuers to comply with Section 4.07, 4.09, or 4.13 of the
Indenture; (iv) failure by the Issuers or any of their Restricted Subsidiaries
for 30 days after notice to the Issuers by the Trustee or the Holders of at
least 25% in principal amount of the Debentures (including additional
Debentures, if any) then outstanding voting as a single class to comply with
certain other agreements in the Indenture or the Debentures; (v) default under
certain other agreements relating to Indebtedness of the Issuers or any of their
Restricted Subsidiaries which default results in the acceleration of such
Indebtedness prior to its express maturity; (vi) certain final judgments for the
payment of money that remain undischarged for a period of 60 days; (vii) failure
by the Company or its Subsidiaries to apply the proceeds from the Offering as
set forth under the caption "Use of Proceeds" in the Offering Memorandum
relating to the Debentures prior to the 10th Business Day after the date of the
Indenture and (viii) certain events of bankruptcy or insolvency with respect to
Issuers or any of their Significant Subsidiaries. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Debentures may declare all the
Debentures to be due and payable immediately; PROVIDED that so long as any
Indebtedness permitted to be incurred by any of Grove Investors' Restricted
Subsidiaries shall be outstanding, such acceleration shall not be effective
until the earlier of (i) an acceleration of any such Indebtedness of Grove
Investors' Restricted Subsidiaries or (ii) ten Business Days after receipt by
the Issuers of written notice of such acceleration. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Debentures will become due and payable
without further action or notice. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Debentures may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Debentures notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the
Debentures then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Debentures waive any existing Default or Event of Default
and its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Debentures. The
Issuers are required to deliver to the Trustee annually a statement
A-2-6
regarding compliance with the Indenture, and the Issuers are required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Issuers or their Affiliates, and may otherwise deal with the
Issuers or their Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A member, director, officer,
employee, incorporator or stockholder of the Issuers, as such, shall not have
any liability for any obligations of the Issuers under the Debentures or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Debenture waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Debentures.
15. AUTHENTICATION. This Debenture shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL DEBENTURES AND
RESTRICTED DEFINITIVE DEBENTURES. In addition to the rights provided to Holders
of Debentures under the Indenture, Holders of Restricted Global Debentures and
Restricted Definitive Debentures shall have all the rights set forth in the
Registration Rights Agreement dated as of April 29, 1998, between the Issuers
and the parties named on the signature pages thereof or, in the case of
additional Debentures, Holders of Restricted Global Debentures and Restricted
Definitive Debentures shall have the rights set forth in one or more
registration rights agreements, if any, between the Issuers and the other
parties thereto, relating to rights given by the Issuers to the purchasers of
any additional Debentures (collectively, the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Debentures and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Debentures
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
The Issuers will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Grove Investors LLC
000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased by the Issuers
pursuant to Section 4.10 of the Indenture, check the appropriate box below:
/ / Section 4.10
If you want to elect to have only part of the Debenture purchased by
the Issuers pursuant to Section 4.10 of the Indenture, state the amount you
elect to have purchased: $___________
Date: Your Signature:
-------- (Sign exactly as your name appears on the Debenture)
Tax Identification No.:
-----------------------------------
Signature Guarantee:
A-2-8
SCHEDULE OF TRANSFERS OR EXCHANGES OF REGULATION S TEMPORARY GLOBAL DEBENTURE
The following transfers or exchanges of a part of this Regulation S
Temporary Global Debenture for an interest in another Global Debenture, or of
other Restricted Global Debentures for an interest in this Regulation S
Temporary Global Debenture, have been made:
Principal Amount
Amount of Amount of increase of this Global Signature of
decrease in in Principal Debenture authorized officer
Principal Amount Amount following such of Trustee or
of this Global of this Global decrease (or Debenture
Date of Exchange Debenture Debenture increase) Custodian
-------------------------- --------------------- --------------------- -------------------- ------------------
A-2-9
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Grove Investors LLC
000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: 14 1/2% SENIOR DEBENTURES DUE 2010
Reference is hereby made to the Indenture, dated as of April 29, 1998
(the "INDENTURE"), between Grove Investors LLC, a Delaware limited liability
company ("GROVE INVESTORS"), Grove Investors Capital, Inc. ("GROVE INVESTORS
CAPITAL" and, together with Grove Investors, the "ISSUERS") and United States
Trust Company of New York, as Trustee (the "TRUSTEE"). Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
______________, (the "TRANSFEROR") owns and proposes to transfer the
Debenture[s] or interest in such Debenture[s] specified in Annex A hereto, in
the principal amount of $___________ in such Debenture[s] or interests (the
"TRANSFER"), to __________ (the "TRANSFEREE"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL DEBENTURE OR A DEFINITIVE DEBENTURE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Debenture is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Debenture for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Debenture will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the 000X
Xxxxxx Xxxxxxxxx and/or the Definitive Debenture and in the Indenture and the
Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
TEMPORARY REGULATION S GLOBAL DEBENTURE, THE REGULATION S GLOBAL DEBENTURE OR A
DEFINITIVE DEBENTURE PURSUANT TO REGULATION S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a person in the United States and (x) at the time the buy
order was originated, the
B-1
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than the Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive
Debenture will be subject to the restrictions on Transfer enumerated in the
Private Placement Legend printed on the Regulation S Global Debenture, the
Temporary Regulation S Global Debenture and/or the Definitive Debenture and in
the Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL DEBENTURE OR A DEFINITIVE DEBENTURE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Debentures and
Restricted Definitive Debentures and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) / / such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Issuers or a subsidiary
thereof;
or
(c) / / such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Debenture or Restricted Definitive Debentures and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the Indenture
and (2) if such Transfer is in respect of a principal amount of Debentures at
the time of transfer of less than $250,000, an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Debenture will be subject to the restrictions on transfer
B-2
enumerated in the Private Placement Legend printed on the IAI Global Debenture
and/or the Definitive Debentures and in the Indenture and the Securities Act.
4. / / Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Debenture or of an Unrestricted Definitive Debenture.
(a) / / Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Debenture will no longer be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Debentures, on
Restricted Definitive Debentures and in the Indenture.
(b) / / Check if Transfer is Pursuant to Regulation S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Debenture will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Debentures, on Restricted Definitive Debentures and in the Indenture.
(c) / / Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Debenture will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Debentures or Restricted Definitive Debentures and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
---------------------------
[Insert Name of Transferor]
By:
---------------------------
Name:
Title:
Dated: ___________, 1998
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Debenture (CUSIP ), or
(ii) / / Regulation S Global Debenture (CUSIP ), or
(iii) / / IAI Global Debenture (CUSIP ); or
(b) / / a Restricted Definitive Debenture.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Debenture (CUSIP ), or
(ii) / / Regulation S Global Debenture (CUSIP ), or
(iii) / / IAI Global Debenture (CUSIP ); or
(iv) / / Unrestricted Global Debenture (CUSIP ); or
(b) / / a Restricted Definitive Debenture; or
(c) / / an Unrestricted Definitive Debenture,
in accordance with the terms of the Indenture.
X-0
XXXXXXX X
XXXX XX XXXXXXXXXXX XX XXXXXXXX
Xxxxx Investors LLC
000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: 14 1/2% SENIOR DEBENTURES DUE 2010
(CUSIP 39958R AA8)
Reference is hereby made to the Indenture, dated as of April 29, 1998
(the "INDENTURE"), between Grove Investors LLC, a Delaware limited liability
company ("GROVE INVESTORS"), Grove Investors Capital, Inc. ("GROVE INVESTORS
CAPITAL" and, together with Grove Investors, the "ISSUERS") and United States
Trust Company of New York, as Trustee (the "TRUSTEE"). Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
____________, (the "OWNER") owns and proposes to exchange the
Debenture[s] or interest in such Debenture[s] specified herein, in the principal
amount of $____________ in such Debenture[s] or interests (the "EXCHANGE"). In
connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Debentures or Beneficial Interests in a
Restricted Global Debenture for Unrestricted Definitive Debentures or Beneficial
Interests in an Unrestricted Global Debenture
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL DEBENTURE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL DEBENTURE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Debenture for a beneficial interest in an Unrestricted Global Debenture
in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Debentures and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the "SECURITIES ACT"), (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global
Debenture is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL DEBENTURE TO UNRESTRICTED DEFINITIVE DEBENTURE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Debenture for
an Unrestricted Definitive Debenture, the Owner hereby certifies (i) the
Definitive Debenture is being acquired for the Owner's own account without
C-1
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Debentures and pursuant to and
in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Definitive
Debenture is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE DEBENTURE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL DEBENTURE. In connection with the
Owner's Exchange of a Restricted Definitive Debenture for a beneficial interest
in an Unrestricted Global Debenture, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Debentures and pursuant to and
in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE DEBENTURE TO
UNRESTRICTED DEFINITIVE DEBENTURE. In connection with the Owner's Exchange of a
Restricted Definitive Debenture for an Unrestricted Definitive Debenture, the
Owner hereby certifies (i) the Unrestricted Definitive Debenture is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Debentures and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive
Debenture is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2. Exchange of Restricted Definitive Debentures or Beneficial Interests in
Restricted Global Debentures for Restricted Definitive Debentures or Beneficial
Interests in Restricted Global Debentures
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL DEBENTURE TO RESTRICTED DEFINITIVE DEBENTURE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Debenture for
a Restricted Definitive Debenture with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Debenture is being acquired for
the Owner's own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Debenture issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Debenture and in the Indenture and the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE DEBENTURE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL DEBENTURE. In connection with the
Exchange of the Owner's Restricted Definitive Debenture for a beneficial
interest in the [CHECK ONE] / / 44A Global Debenture, / / Regulation S Global
Debenture, / / IAI Global Debenture with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Debentures and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon
C-2
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Debenture and in the Indenture and the Securities Act.
C-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
--------------------------------
[Insert Name of Owner]
By:
-----------------------------
Name:
Title:
Dated: ,
----------------- -----
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Grove Investors LLC
000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: 14 1/2% Senior Debentures due 2010
Reference is hereby made to the Indenture, dated as of April 29, 1998
(the "INDENTURE"), between Grove Investors LLC, a Delaware limited liability
company ("GROVE INVESTORS"), Grove Investors Capital, Inc. ("GROVE INVESTORS
CAPITAL" and, together with Grove Investors, the "ISSUERS") and United States
Trust Company of New York, as Trustee (the "TRUSTEE"). Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) / / a beneficial interest in a Global Debenture, or
(b) / / a Definitive Debenture,
we confirm that:
1. We understand that any subsequent transfer of the Debentures or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Debentures or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Debentures have not been
registered under the Securities Act, and that the Debentures and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Debentures or
any interest therein, we will do so only (A) to the Issuers or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (c) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Issuers a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Debentures, at the time of
transfer of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Issuers to the effect that such transfer is in compliance with
the Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Debenture or beneficial interest in a Global
Debenture from us in a transaction meeting the requirements of clauses (A)
through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Debentures or
beneficial interest therein, we will be required to furnish to you and the
Issuers such certifications, legal opinions and other information as you and the
Issuers may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Debentures purchased
by us will bear a legend to the foregoing effect. We further understand that
any subsequent transfer by us of the Debentures or beneficial interest therein
acquired by us must be effected through one of the Placement Agents.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Debentures, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Debentures or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
------------------------------------
[Insert Name of Accredited Investor]
By:
-----------------------------------
Name:
Title:
Dated: ,
-------------- ----
