Exhibit T3C
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GROVE HOLDINGS, INC.,
as Company
$45,000,000
14% DEBENTURES DUE 2007
--------------------------------
INDENTURE
Dated as of September ], 2001
--------------------------------
The Bank of New York
as Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture Act..............................................Indenture
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)..........................................................2.06
(b).........................................................11.03
(c).........................................................11.03
313 (a)..........................................................7.06
(b)(2).......................................................7.07
(c)...................................................7.06, 11.02
314 (a)..................................................4.03, 11.02
(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)................................................2.10
(a)(1)(A)....................................................6.05
(a)(1)(B)....................................................6.04
(a)(2).......................................................N.A.
(b)..........................................................6.07
(c)..........................................................2.13
317 (a)(1)............................................................6.08
(a)(2).......................................................6.09
(b)..........................................................2.05
318 (a).........................................................11.01
(b)..........................................................N.A.
(c).........................................................11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.....................................................1
Section 1.01. Definitions....................................................................................1
Section 1.02. Other Definitions.............................................................................13
Section 1.03. Incorporation by reference of Trust Indenture Act.............................................13
Section 1.04. Rules of Construction.........................................................................14
ARTICLE 2 THE DEBENTURES................................................................................14
Section 2.01. Form and Dating...............................................................................14
Section 2.02. Title and Terms...............................................................................16
Section 2.03. Execution and Authentication..................................................................17
Section 2.04. Registrar and Paying Agent....................................................................18
Section 2.05. Paying Agent to Hold Money and Additional Debentures in Trust.................................18
Section 2.06. Holder Lists..................................................................................18
Section 2.07. Transfer and Exchange.........................................................................19
Section 2.08. Replacement Debentures........................................................................20
Section 2.09. Outstanding Debentures........................................................................21
Section 2.10. Treasury Debentures...........................................................................21
Section 2.11. Temporary Debentures..........................................................................21
Section 2.12. Cancellation..................................................................................21
Section 2.13. Defaulted Interest............................................................................22
Section 2.14. CUSIP Numbers.................................................................................22
Section 2.15 Issuance of Additional Debentures.............................................................22
ARTICLE 3 REDEMPTION AND PREPAYMENT.....................................................................23
Section 3.01. Notices to Trustee............................................................................23
Section 3.02. Selection of Debentures to Be Redeemed........................................................23
Section 3.03. Notice of Redemption..........................................................................23
Section 3.04. Effect of Notice of Redemption................................................................24
Section 3.05. Deposit of Redemption Price...................................................................24
Section 3.06. Debentures Redeemed in Part...................................................................25
Section 3.07. Optional Redemption...........................................................................25
ARTICLE 4 COVENANTS.....................................................................................26
Section 4.01. Payment of Debentures.........................................................................26
Section 4.02. Maintenance of Office or Agency...............................................................26
Section 4.03. Reports.......................................................................................27
Section 4.04. Compliance Certificate........................................................................27
Section 4.05. Taxes.........................................................................................28
Section 4.06. Stay, Extension and Usury Laws................................................................28
Section 4.07. Restricted Payments...........................................................................30
Section 4.08. Incurrence of Indebtedness and Issuance of Preferred Stock....................................32
Section 4.09. Designation of Restricted and Unrestricted Subsidiaries.......................................33
Section 4.10. Sale of Assets................................................................................33
Section 4.11. Transactions with Affiliates..................................................................33
Section 4.12. Limitation on Liens...........................................................................35
Section 4.13. Corporate Existence...........................................................................35
Section 4.14. Offer to Purchase Upon Change of Control......................................................35
Section 4.15. Limitation on Pledges and Issuance Capital Stock of Restricted Subsidiaries...................36
Section 4.16. Investments...................................................................................36
Section 4.17. Payments for Consent..........................................................................37
Section 4.18. Consummation Of Plan Of Reorganization........................................................37
Section 4.19. Operating Leases; Sale/Leasebacks.............................................................37
Section 4.20. Notice of Certain Events......................................................................37
ARTICLE 5 SUCCESSORS....................................................................................38
Section 5.01. Merger, Consolidation, or Sale of Assets......................................................38
Section 5.02. Successor Corporation Substituted.............................................................39
ARTICLE 6 DEFAULTS AND REMEDIES.........................................................................39
Section 6.01. Events of Default.............................................................................39
Section 6.02. Acceleration..................................................................................40
Section 6.03. Other Remedies................................................................................40
Section 6.04. Waiver of Past Defaults.......................................................................41
Section 6.05. Control by Majority...........................................................................41
Section 6.06. Limitation on Suits...........................................................................41
Section 6.07. Rights of Holders of Debentures to Receive Payment............................................42
Section 6.08. Collection Suit by Trustee....................................................................42
Section 6.09. Trustee May File Proofs of Claim..............................................................42
Section 6.10. Priorities....................................................................................42
Section 6.11. Undertaking for Costs.........................................................................43
ARTICLE 7 TRUSTEE.......................................................................................43
Section 7.01. Duties of Trustee.............................................................................44
Section 7.02. Rights of Trustee.............................................................................45
Section 7.03. Individual Rights of Trustee..................................................................45
Section 7.04. Trustee's Disclaimer..........................................................................45
Section 7.05. Notice of Defaults............................................................................45
Section 7.06. Reports by Trustee to the Holders.............................................................45
Section 7.07. Compensation and Indemnity....................................................................46
Section 7.08. Replacement of Trustee........................................................................47
Section 7.09. Successor Trustee by Merger, etc..............................................................48
Section 7.10. Eligibility; Disqualification.................................................................48
Section 7.11. Preferential Collection of Claims Against Company.............................................48
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE......................................................48
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance......................................48
Section 8.02. Legal Defeasance and Discharge................................................................48
Section 8.03. Covenant Defeasance...........................................................................49
Section 8.04. Conditions to Legal or Covenant Defeasance....................................................49
Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions......................................................................50
Section 8.06. Repayment to Company..........................................................................51
Section 8.07. Reinstatement.................................................................................51
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER..............................................................52
Section 9.01. Without Consent of Holders of Debentures......................................................52
Section 9.02. With Consent of Holders of Debentures.........................................................53
Section 9.03. Compliance with Trust Indenture Act...........................................................54
Section 9.04. Revocation and Effect of Consents.............................................................54
Section 9.05. Notation on or Exchange of Debentures.........................................................54
Section 9.06. Trustee to Sign Amendments, etc...............................................................54
ARTICLE 10 SATISFACTION AND DISCHARGE....................................................................54
Section 10.01. Satisfaction and Discharge....................................................................54
Section 10.02. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions......................................................................55
Section 10.03. Repayment to Company..........................................................................55
ARTICLE 11 MISCELLANEOUS.................................................................................56
Section 11.01. Trust Indenture Act Controls..................................................................56
Section 11.02. Notices.......................................................................................56
Section 11.03. Communication by Holders of Debentures with Other Holders of Debentures.......................57
Section 11.04. Certificate and Opinion as to Conditions Precedent............................................57
Section 11.05. Statements Required in Certificate or Opinion.................................................57
Section 11.06. Rules by Trustee and Agents...................................................................58
Section 11.07. No Personal Liability of Directors, Officers, Employees and Stockholders......................58
Section 11.08. Governing Law.................................................................................58
Section 11.09. No Adverse Interpretation of Other Agreements.................................................58
Section 11.10. Successors....................................................................................58
Section 11.11. Severability..................................................................................58
Section 11.12. Counterpart Originals.........................................................................59
Section 11.13. Table of Contents, Headings, etc..............................................................59
EXHIBITS
Exhibit A FORM OF DEBENTURE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
INDENTURE dated as of September [ ], by and among GROVE
HOLDINGS, INC., a Delaware corporation (the "Company") and The Bank of New
York, a New York corporation, as trustee (the "Trustee").
RECITALS
A. The Company and certain of its subsidiaries and
affiliates (the "Debtors") filed for reorganization under chapter 11 of
title 11 of the United States Code (the "Bankruptcy Code") in the United
States Bankruptcy Court for the Middle District of Pennsylvania (the
"Bankruptcy Court"); and
B. By order, dated September [ ], 2001, the Bankruptcy
Court has confirmed the Debtors' joint plan of reorganization in accordance
with section 1129 of the Bankruptcy Code (the "Plan"); and
C. As part of the Plan, the Company has agreed to issue
the Debentures (as defined herein) to certain holders of indebtedness of
the Company and such subsidiaries;
NOW, THEREFORE, the Company 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% Debentures (the "Debentures"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or assumed
in connection with the acquisition of assets from such Person.
"Additional Debentures" means 14% Debentures due 2007,
issued from time to time under this Indenture after the Issue Date pursuant
to Section 2.02 of this Indenture.
"Affiliate" means with respect to any Person, any other
Person which, directly or indirectly controls, is controlled by, or is
under common control with such Person, each executive officer, director,
general partner or joint-venturer of such Person and each Person. For the
purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common
control with"), when used with respect to any specified 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.
"Agent" means any Registrar, Paying Agent or
co-registrar.
"Applicable Procedures" means, with respect to any
transfer or exchange of or for beneficial interests in any Global
Debenture, the rules and procedures of the Depositary that apply to such
transfer or exchange.
"Asset Sale" means (a) the sale, lease, transfer,
conveyance or other disposition of any assets or any interest therein
(including the sale or factoring at maturity or collection of any accounts)
to any Person or permit the sufferance of any other Person's acquisition of
any interest in any of its assets; provided, however, that the sale, lease,
conveyance or other disposition of all or substantially all of the assets
of the Company and its Subsidiaries taken as a whole shall be governed by
Section 5.01, and (b) in the case of any Restricted Subsidiary, issue or
sell any share of such Restricted Subsidiary's Capital Stock other than to
the Company or a Restricted Subsidiary of the Company.
"Bankruptcy Law" means the Bankruptcy Code or any similar
federal or state law for the relief of debtors as amended from time to
time.
"Board of Directors" means the board of directors of the
Company.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
"Business Day" means a day other than Saturday, Sunday or
other day on which commercial banks in New York, New York or Harrisburg,
Pennsylvania are authorized or required by law to close.
"Capital Lease" means, with respect to any Person, any
lease of property by such Person as lessee which would be accounted for as
a capital lease on a balance sheet of such Person prepared in conformity
with GAAP.
"Capital Lease Obligations" means, with respect to any
Person, the capitalized amount of all obligations of such Person or any of
its Restricted Subsidiaries under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for
as capital leases on a balance sheet of such Person under GAAP, and, for
the purposes of this Agreement, the amount of such obligations at any time
shall be in conformity with GAAP.
"Capital Stock" means, with respect to any Person, any
shares or other equivalents (however designated) of any class of corporate
stock or partnership interests or any other participation, rights,
warrants, options or other interests in the nature of an equity interest in
such Person, including Preferred Stock, but excluding any debt security
convertible or exchangeable into such equity interest.
"Capital Stock Sale Proceeds" means the aggregate cash
proceeds received by the Company from the issuance or sale (other than to a
Restricted Subsidiary of the Company or an employee stock ownership plan or
trust established by the Company or any such Restricted Subsidiary for the
benefit of their employees) by the Company of its Capital Stock (other than
Disqualified Stock) after the Issue Date, net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Cash Equivalents" means (a) Government Securities; (b)
certificates of deposit, time deposits, eurocurrency time deposits or
overnight bank deposits having maturities of one year or less from the date
of acquisition issued by any lender or by any commercial bank organized
under the laws of the United States of America or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial
paper of an issuer rated at least A-2 by Standard & Poor's ("S&P") or P-2
by Xxxxx'x Investor Service, Inc. ("Moody's"), or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named
rating agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not
more than 30 days with respect to securities issued or fully guaranteed or
insured by the United States government; (e) securities with maturities of
one year or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by
Moody's; (f) securities with maturities of one year or less from the date
of acquisition backed by standby letters of credit issued by any lender or
any commercial bank satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or similar funds which
invest in assets satisfying the requirements of clauses (a) through (f) of
this definition and are sponsored by a registered broker dealer or mutual
fund distributor.
"Clearstream" means Clearstream Banking, S.A. of
Luxembourg, or any successor securities clearing agency.
"Change of Control" means the occurrence of any of the
following: (a) 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 the
Company and its Subsidiaries taken as a whole to any "person" or "group"
(as such terms are used in Section 13(d)(3) of the Exchange Act) (whether
or not otherwise in compliance with this Indenture); (b) the adoption of a
plan relating to the liquidation or dissolution of the Company; (c) the
consummation of any transaction (including, without limitation, any merger
or consolidation) the result of which is that any "person" or "group" (as
such terms are used in Section 13(d)(3) of the Exchange Act), other than
any underwriters in connection with an underwritten public offering,
becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the Exchange Act), directly or indirectly, of more than
51% of the Voting Stock of the Company or Grove Investors (measured by
voting power rather than the number of shares); (d) the first day on which
more than a majority of the members of the Board of Directors are not
Continuing Directors; (e) the Company ceases to directly own 100% of the
Voting Stock of Grove Worldwide or (f) the Company consolidates with, or
merges with or into, any Person, or any Person consolidates with, or merges
with or into, the Company, in any such event pursuant to a transaction in
which any of the outstanding Voting Stock of the Company is converted into
or exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of the Company outstanding immediately
prior to such transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of
such surviving or transferee Person immediately after giving effect to such
issuance.
"Consolidated Net Income" means, for any Person for any
period, the net income (or loss) of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
conformity with GAAP.
"Consolidated Net Worth" means the total of the amounts
shown on the consolidated balance sheet of the Company and its Restricted
Subsidiaries as of the end of the most recent fiscal quarter of the Company
ending at least 45 days prior to the taking of any action for the purpose
of which the determination is being made, as:
(a) the par or stated value of all outstanding Capital
Stock of the Company,
plus
(b) paid-in capital or capital surplus relating to
such Capital Stock plus
(c) any retained earnings or earned surplus, less:
(1) any accumulated deficit, and
(2) any amounts attributable to Disqualified
Stock.
"Continuing Director" means, as of any date of
determination, any member of the Board of Directors who (a) was a member of
the Board of Directors on the date of this Indenture or (b) was nominated
for election to the Board of Directors with the approval of a majority of
the Directors who were members of the Board of Directors at the time of
such nomination.
"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 the Company.
"Custodian" means the Trustee, as custodian with respect
to the Debentures in global form, or any successor entity thereto.
"Customary Permitted Liens" means, with respect to any
Person, any of the following Liens:
(a) Liens with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due or
which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP;
(b) Liens of landlords arising by statute and liens of
suppliers, mechanics, carriers, materialmen, warehousemen or workmen and
other liens imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or
other appropriate provisions are being maintained to the extent required by
GAAP;
(c) deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other
types of social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed money)
and surety, appeal, customs or performance bonds;
(d) encumbrances arising by reason of zoning
restrictions, easements, licenses, reservations, covenants, rights-of-way,
utility easements, building restrictions and other similar encumbrances on
the use of real property which do not materially detract from the value of
such real property or interfere with the ordinary conduct of the business
conducted and proposed to be conducted at such real property;
(e) encumbrances arising under leases or subleases of
real property which do not in the aggregate materially detract from the
value of such real property or interfere with the ordinary conduct of the
business conducted and proposed to be conducted at such real property;
(f) financing statements of a lessor's rights in and to
personal property leased to such Person in the ordinary course of such
Person's business;
(g) Liens on assets at the time the Person acquired such
assets, including any acquisition by means of a merger or consolidation
with or into such Person; provided, however, that any such Lien may not
extend to any other assets of such Person; provided further, however, that
such Liens shall not have been incurred in anticipation of or in connection
with the transaction or series of transactions pursuant to which such
assets were acquired by such Person;
(h) Liens on the assets of a Person at the time such
Person becomes a Subsidiary; provided, however, that any such Lien may not
extend to any other assets of such person that is not a direct Subsidiary
of such Person; provided further, however, that any such Lien was not
incurred in anticipation of or in connection with the transaction or series
of transactions pursuant to which such Person became a Subsidiary;
(i) Liens arising out of judgments or awards against such
person or a Subsidiary with respect to which such person or the Subsidiary
shall then be proceeding with an appeal or other proceeding for review and
which do not give rise to an Event of Default;
(j) Liens arising out of sale and leaseback transactions
permitted under Section 4.19 hereof; and
(k) Liens existing on the Issue Date not otherwise
described in clauses (a) through (j) above.
"Dealer Receivables Financing" means (i) any off-balance
sheet financing of dealer obligations owing to the Company or any of its
Restricted Subsidiaries, with limited recourse to the Company and its
Restricted Subsidiaries; (ii) or any other such financing having a similar
purpose.
"Debentures" means the Initial Debentures and the
Additional 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 attached hereto without the Global Debenture Legend and
without the "Schedule of Exchanges of Interests in the Global Debenture"
attached thereto.
"Depositary" means, with respect to the Debentures
issuable or issued in whole or in part in global form, the Person specified
in Section 2.04 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,
and thereafter, "Depositary" shall mean or include such successor.
"Disqualified Stock" means, with respect to any Person,
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), or upon the
happening of any event (other than as a result of an optional call for
redemption by the Person), matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option
of the holder thereof (other than as a result of a "change of control" or
asset sale), in whole or in part, on or prior to the date that is 91 days
after the stated maturity date of the Debentures. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified
Stock solely because the holders thereof have the right to require the
Person to repurchase such Capital Stock upon the occurrence of a change of
control or with the proceeds of an asset sale shall not constitute
Disqualified Stock if the terms of such Capital Stock otherwise provide
that the Person may not repurchase or redeem any such Capital Stock
pursuant to such provisions.
"Disqualified Stock Dividends" means all dividends with
respect to Disqualified Stock of the Company held by Persons other than a
Restricted Subsidiary. The amount of any such dividend shall be equal to
the quotient of such dividend divided by the difference between one and the
maximum statutory federal income tax rate (expressed as a decimal number
between 1 and 0) then applicable to the Company.
"Dollars" and the sign "$" each mean the lawful currency
of the United States of America.
"EBITDA" means, with respect to any Person for any
period, an amount equal to (a) Consolidated Net Income of such Person for
such period plus (b) the sum of, in each case to the extent included in the
calculation of such Consolidated Net Income but without duplication, (i)
any provision for income taxes, (ii) Interest Expense, (iii) loss from
extraordinary items and (iv) depreciation, depletion and amortization of
intangibles or financing or acquisition costs and (v) all other non-cash
charges (including, without limitation, any and all charges required in
connection with "fresh start" accounting) and non-cash losses for such
period, including the amount of any compensation deduction as the result of
any grant of Capital Stock to employees, officers, directors or
consultants, other than charges representing accruals of future cash
expenses minus (c) the sum of, in each case to the extent included in the
calculation of such Consolidated Net Income but without duplication, (i)
any credit for income tax, (ii) gains from extraordinary items for such
period, (iii) any aggregate net gain (but not any aggregate net loss) from
the sale, exchange or other disposition of capital assets by such Person,
and (iv) any other non-cash gains or other items which have been added in
determining Consolidated Net Income, including any reversal of a change
referred to in clause (b)(v) above by reason of a decrease in the value of
any Capital Stock. Notwithstanding the foregoing, "EBITDA" of the Company
for each of the fiscal quarters ending March 31, 2001, June 30, 2001 and
September 30, 2001 is, and, for purposes of calculations hereunder shall
be, $13,900,000, $7,200,000 and $6,200,000, respectively.
"Euroclear" means Xxxxxx Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear systems or any
successor clearing agency.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Fair Market Value" means the price that would be paid in
an arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy, as determined in good faith by the Board of Directors, whose
determination shall be conclusive if evidenced by a Board Resolution
delivered to the Trustee.
"Fiscal Year" means the twelve month period ending on
September 30 (or the Saturday closest thereto).
"GAAP" means generally accepted accounting principles in
the United States of America, as in effect from time to time, as set forth
in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the statements
and pronouncements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable to
the circumstances as of the date of determination.
"Global Debenture Legend" means the legend set forth in
Section 2.07, which is required to be placed on all Global Debentures
issued under this Indenture.
"Global Debentures" means the Global Debentures in the
form of Exhibit A hereto issued in accordance with Section 2.02 hereof.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America or issued by any
agency thereof, and the payment for which the United States pledges its
full faith and credit.
"Grove Investors" means Grove Investors, Inc., a Delaware
corporation.
"Grove Worldwide" means Grove Worldwide, Inc.
"Grove Worldwide Credit Agreement" means that certain
Credit Agreement, dated as of September [ ], 2001, by and among Grove
Worldwide Inc., as borrower, the subsidiary guarantors listed therein, the
lenders named therein and [The Chase Manhattan Bank], as administrative
agent for the lenders.
"Guaranty Obligation" means, as applied to any Person,
any direct or indirect liability, contingent or otherwise, of such Person
with respect to any Indebtedness of another Person, if the purpose or
intent of such Person in incurring the Guaranty Obligation is to provide
assurance to the obligee of such Indebtedness that such Indebtedness will
be paid or discharged, or that any agreement relating thereto will be
complied with, or that any holder of such Indebtedness will be protected
(in whole or in part) against loss in respect thereof, including (a) the
direct or indirect guaranty, endorsement (other than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of Indebtedness of another
Person and (b) any liability of such Person for Indebtedness of another
Person through any agreement (contingent or otherwise) (i) to purchase,
repurchase or otherwise acquire such Indebtedness or any security therefor,
or to provide funds for the payment or discharge of such Indebtedness
(whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance
sheet item, level of income or financial condition of another Person, (iii)
to make take-or-pay or similar payments, if required, regardless of
non-performance by any other party or parties to an agreement, (iv) to
purchase, sell or lease (as lessor or lessee) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such Indebtedness
against loss, or (v) to supply funds to or in any other manner invest in
such other Person (including to pay for property or services irrespective
of whether such property is received or such services are rendered), if in
the case of any agreement described under subclause (i), (ii), (iii), (iv)
or (v) of clause (b) of this sentence the primary purpose or intent thereof
is as described above in the language preceding clause (a) of this
sentence; provided, however, that, for purposes of this Agreement,
"Guaranty Obligation" shall not include any residual value guaranties
consistent with the Company's customary business practices. The amount of
any Guaranty Obligation shall be equal to the amount of the Indebtedness so
guaranteed or otherwise supported.
"Hedging Contracts" means all Interest Rate Contracts,
foreign exchange contracts, currency swap or option agreements, forward
contracts, commodity swap, purchase or option agreements, other commodity
price hedging arrangements, and all other similar agreements or
arrangements designed to alter the risks of any Person arising from
fluctuations in interest rates, currency values or commodity prices for the
sole purpose of hedging in the normal course of business and consistent
with industry practices and not entered into to engage in any speculative
transaction.
"Holder" means a Person in whose name a Debenture is
registered.
"Indebtedness" of any Person means without duplication
(a) all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by notes, bonds, debentures or similar instruments
or which bear interest, (c) all reimbursement and all obligations with
respect to surety bonds and performance bonds, whether or not matured, (d)
all obligations for the deferred purchase price of property or services
outside the ordinary course of business, (e) all obligations of such Person
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property)
outside the ordinary course of business, (f) all Capital Lease Obligations
of such Person and the present value of future rental payments under all
synthetic leases, (g) all Guaranty Obligations of such Person, (h)
Disqualified Stock, with the amount of Indebtedness represented by such
Disqualified Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price,
(i) all payments that such Person would have to make in the event of an
early termination on the date Indebtedness of such Person is being
determined in respect of Hedging Contracts of such Person, (j) all
Indebtedness of the type referred to above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien upon or in property (including accounts and
general intangibles) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness and (k) the
amount of any Dealer Receivables Financing.
"Indenture" means this instrument, as originally executed
or as it may from time to time be supplemented or amended in accordance
with Article 9 hereof.
"Independent Financial Advisor" means an investment
banking firm of national standing or any third party appraiser of national
standing, provided that such firm or appraiser is not an Affiliate of the
Company.
"Indirect Participant" means a Person who holds a
beneficial interest in a Global Debenture through a Participant.
"Initial Debentures" means the 14% Debentures due 2007
issued under this Indenture on the Issue Date pursuant to the Plan.
"Interest Coverage Ratio" means, with respect to any
Person for the most recent four consecutive fiscal quarters, the ratio of
EBITDA of such Person for such period to Interest Expense of such Person
for such period.
"Interest Expense" means, with respect to any person for
any period, (a) total interest expense of the Person and its Subsidiaries
for such period determined on a consolidated basis in conformity with GAAP
and including, in any event, (i) interest capitalized during such period
and net costs under Interest Rate Contracts for such period and (ii)
Disqualified Stock Dividends minus (b) the sum of (i) net gains of the
Person and its Subsidiaries under Interest Rate Contracts for such period
determined on a consolidated basis in conformity with GAAP plus (ii) any
interest income of the Person and its Subsidiaries for such period
determined on a consolidated basis in conformity with GAAP.
"Interest Payment Date" shall have the meaning ascribed
to such term in Section 2.02 hereof.
"Interest Rate Contracts" means all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements
and interest rate insurance.
"Investment" means, with respect to any Person, (a) any
purchase or other acquisition by that Person of (i) any Security issued by,
(ii) a beneficial interest in any Security issued by, or (iii) any other
equity ownership interest in, any other Person, (b) any purchase by that
Person of all or a significant part of the assets of a business conducted
by another Person, (c) any loan, advance (other than deposits with
financial institutions available for withdrawal on demand, prepaid
expenses, accounts receivable and similar items made or incurred in the
ordinary course of business of such Person as then conducted at the time of
such loan or advance or capital contribution by that Person to any other
Person, including all Indebtedness of any other Person to that Person
arising from a sale of property by that Person other than in the ordinary
course of its business, and (d) any Guaranty Obligation incurred by that
Person in respect of Indebtedness of any other Person. Investment excludes
extensions of trade credit on commercially reasonable terms in accordance
with normal trade practices.
"Issue Date" means September [___], 2001.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, lien
(statutory or other), security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever intended to assure payment of any Indebtedness or other
obligation, including any conditional sale or other title retention
agreement, the interest of a lessor under a Capital Lease, any financing
lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction naming the owner of
the asset to which such Lien relates as debtor.
"New Senior Secured Facility" means the credit facility
to be entered into by Grove Worldwide pursuant to the Plan, together with
all notes, security agreements, mortgages, pledge agreements and guarantees
delivered in connection therewith, as the same may be amended, restated,
replaced, refinanced or extended from time to time. A credit facility shall
be a New Senior Secured Facility for purposes of this Agreement only if it
contains a statement to the effect that it is a New Senior Secured Facility
for purposes of this Agreement.
"Officer" means, with respect to any Person, the Chairman
of the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary
or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on
behalf of the Company by two Officers of the Company, one of whom must be
the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Company, that meets
the requirements of Sections 11.04 and 11.05 hereof.
"Opinion of Counsel" means an opinion, from legal counsel
who is reasonably acceptable to the Trustee, that meets the requirements of
Sections 11.04 and 11.05 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.
"Participant" means, with respect to the Depositary,
Euroclear or Clearstream, a Person who has an account with the Depositary,
Euroclear or Clearstream, respectively, and, with respect to the Depository
Trust Company, shall include Euroclear and Clearstream.
"Permitted Acquisition" means the acquisition by any of
the Company or its Restricted Subsidiaries of all or substantially all of
the assets or Stock of any Person or of any operating division thereof (the
"Target"), or the merger of the Target with or into the Company or any
Restricted Subsidiary of the Company (with the Company, in the case of a
merger with the Company, being the surviving corporation).
"Permitted Investments" has the meaning set forth in
Section 4.16.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, estate, trust, limited
liability company, unincorporated association, joint venture or other
entity, or a Governmental Authority.
"Plan" means the Amended Joint Plan of Reorganization in
the Chapter 11 cases of the Company and certain of its Subsidiaries, dated
June 25, 2001, as such Plan may be amended, modified, supplemented or
restated from time to time.
"Preferred Stock" means any Capital Stock of a Person,
however designated, which entitles the holder thereof to a preference with
respect to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of any other class of Capital Stock issued by such
Person.
"Responsible Officer," when used with respect to the
Trustee, means any officer within the Corporate Trust Department of the
Trustee (or any successor group of the Trustee) or any other officer of the
Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the
particular subject.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any Capital Stock of the
Company or any of its Subsidiaries now or hereafter outstanding, except a
dividend payable solely in Capital Stock of the Person making such dividend
or distribution, or a dividend or distribution payable solely to the
Company and/or one or more Restricted Subsidiaries (and if not wholly-owned
proportionately to the other shareholders in accordance with their
respective interest in the Person making such dividend or dstribution), (b)
any redemption, retirement or similar payment, purchase or other
acquisition for value, direct or indirect, of any Capital Stock of the
Company or any of its Restricted Subsidiaries now or hereafter outstanding
other than one payable solely to the Company and/or one or more Restricted
Subsidiaries, (c) any redemption, retirement or similar payment, purchase
or other acquisition for value, prior to the date for any scheduled
maturity, sinking fund or amortization or other installment payment, of any
Subordinated Obligation (other than the purchase, repurchase or other
acquisition of any Subordinated Obligation purchased in anticipation of
satisfying a scheduled maturity, sinking fund, amortization or other
installment obligation, in each case due within one year of the date of
acquisition) or (d) any Investment (other than Permitted Investments).
"Restricted Subsidiary" means Grove Worldwide and any
other Subsidiary of the Company other than an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Security" means any Capital Stock, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness,
whether secured, unsecured, convertible or subordinated, or any certificate
of interest, share or participation in, or any temporary or interim
certificate for the purchase or acquisition of, or any right to subscribe
to, purchase or acquire, any of the foregoing, but shall not include the
Debentures.
"Securities Act" means the Securities Act of 1933, as
amended.
"Significant Subsidiary" means any Subsidiary that would
be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the Commission, as the same (or
any successor rule or regulation) may from time to time be in effect.
"Subordinated Obligations" means any Indebtedness of the
Company or any Subsidiary (whether outstanding on the Issue Date or
thereafter incurred) that is subordinate or junior in right of payment to
the Debentures pursuant to a written agreement to that effect.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company or other business
entity of which an aggregate of 50% or more of the outstanding Voting Stock
is, at the time, directly or indirectly, owned or controlled by such Person
and/or one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
xx.xx. 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall be
appointed pursuant to the applicable provisions of this Indenture, and
thereafter such successor Trustee.
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary and (b) any Subsidiary of the Company (other than
Grove Worldwide or any other direct Subsidiary of the Company) which is
classified after the Issue Date as an Unrestricted Subsidiary in compliance
with the covenant set forth in Section 4.09 hereof.
"Voting Stock" means Capital Stock of any Person having
ordinary power to vote in the election of members of the board of
directors, managers, trustees or other controlling Persons, of such Person
(irrespective of whether, at the time, Stock of any other class or classes
of such entity shall have or might have voting power by reason of the
happening of any contingency).
"Weighted Average Life to Maturity" means, when applied
to any Indebtedness or Disqualified Stock, as the case may be, at any date,
the quotient obtained by dividing (a) the sum of the products of the number
of years from the date of determination to the date of each successive
scheduled principal payment of such Indebtedness or redemption or similar
payment with respect to such Disqualified Stock multiplied by the amount of
such payment, by (b) the sum of all such payments.
"Wholly-Owned Subsidiary" of a specified Person means any
Subsidiary, all of the Voting Stock (other than directors' qualifying
shares) of which are owned, directly or indirectly, by such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
"Authentication Order".......................................... 2.03
"Benefited Party"............................................... 10.01
"Change of Control Offer"....................................... 4.15
"Change of Control Payment"..................................... 4.15
"Change of Control Payment Date"................................ 4.15
"Covenant Defeasance"........................................... 8.03
"DTC"........................................................... 2.04
"Event of Default".............................................. 6.01
"Interest Payment Date"......................................... 2.02
"Legal Defeasance".............................................. 8.02
"Maturity Date"................................................. 2.02
"Paying Agent".................................................. 2.04
"Payment Default"............................................... 6.01
"Reference Date"................................................ 2.02
"Registrar"..................................................... 2.04
"Successor Company"............................................. 5.01
Section 1.03. Incorporation by reference of Trust Indenture Act
(a) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
(b) The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Debentures;
"indenture security Holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Debentures means the Company 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 SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04. Rules of Construction.
(a) Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined herein 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) All references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and subdivisions of this instrument
as originally executed. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or
other subdivision.
(6) "including" means "including without limitation";
(7) provisions apply to successive events and
transactions; and
(8) 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 SEC from time to
time.
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 attached
hereto, which is hereby incorporated in and expressly made part of this
Indenture. The Debentures may have notations, legends or endorsements
required by law, stock exchange rule, custom or usage. Each Debenture shall
be dated the date of its authentication. The Debentures shall be issued 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 Company 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) Form of Debentures. Debentures issued in global form shall be
substantially in the form of Exhibit A 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 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 Custodian, at the
direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.07 hereof.
(c) Euroclear and Clearstream 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 Clearstream Bank"] and "Customer Handbook" of Clearstream
shall be applicable to transfers of beneficial interests in Global
Debentures that are held by Participants through Euroclear or Clearstream.
(d) Book-Entry Provisions. This Section 2.01(d) shall only apply
to Global Debentures deposited with the Trustee, as custodian for the
Depositary. Participants and Indirect Participants shall have no rights
under this Indenture with respect to any Global Debenture held on their
behalf by the Depositary or by the Trustee as the custodian for the
Depositary or under such Global Debenture, and the Depositary shall be
created by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Debenture for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished
by the Depositary or impair, as between the Depositary and its Participants
or Indirect Participants, the Applicable Procedures or the operation of
customary practices of the Depositary governing the exercise of the rights
of a holder of a beneficial interest in any Global Debenture.
(e) Certificated Securities. If at any time the Depositary
notifies the Company that it is unwilling or unable to continue as
Depositary or if at any time the Depositary shall no longer be eligible
under this Section 2.01, the Company shall appoint a successor Depositary.
If a successor Depositary is not appointed by the Company within ninety
(90) days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 2.03 that the
Debentures be represented by Debentures in global form shall no longer be
effective and the Company will execute, and the Trustee, upon receipt of a
Company order for the authentication and delivery of Definitive Debentures,
will authenticate and deliver Debentures in definitive form, in authorized
denominations, in an aggregate principal amount and like terms and tenor
equal to the principal amount of the Global Debentures in exchange for such
Global Debentures.
The Company may at any time and in its sole discretion
determine that Global Debentures shall no longer be represented by such
Global Debentures. In such event, the Company will execute, and the
Trustee, upon receipt of a Company order for the authentication and
delivery of definitive Debentures of the same terms and tenor, will
authenticate and deliver Debentures in definitive form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debentures in exchange for such Global Debentures.
If specified by the Company, pursuant to this Section
2.03 with respect to Global Debentures, the Depositary may surrender Global
Debentures in exchange in whole or in part for Definitive Debentures of
like terms and tenor on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee,
upon receipt of a Company order for the authentication and delivery of
Definitive Debentures, shall authenticate and deliver, without service
charge to the Holders:
(i) to each Person specified by such Depositary a new
Definitive Debenture of the same tenor, in authorized
denominations, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Note;
and
(ii) to such Depositary a new Global Debenture in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Debenture and the
aggregate principal amount of the Definitive Debentures delivered
to Holders pursuant to clause (a) above.
Upon the exchange of a Global Debenture for Definitive
Debentures, such Global Debenture shall be cancelled by the Trustee or an
agent of the Company or the Trustee. Definitive Debentures in exchange for
a Global Note pursuant to this Section 2.01(e) shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Company or the Trustee in writing.
The Trustee or such agent shall deliver such Debenture to or as directed by
the Persons in whose names such Debentures are so registered or to the
Depositary.
Section 2.02. Title and Terms.
The Debentures shall be known and designated as the "14%
Debentures due 2007" of the Company. Principal and interest on the
Debentures to the extent not previously paid in full in cash shall be due
and payable in cash on the maturity of the Debentures, which shall be
September [15], 2007 ("Maturity Date").
Interest shall accrue from __________, 2001 at the rate
of fourteen percent (14%) per annum until the principal thereof is paid or
made available for payment. Interest shall be payable semiannually in
arrears on ___________ 15 and __________ 15 in each year, commencing
_________ 15, 2002 (each an "Interest Payment Date").
Interest shall be payable to the Holders of record of the
Debentures at 5:00 p.m., New York City time, on the fifteenth Business Day
immediately preceding the Interest Payment Date (each such date, a
"Reference Date"). On each Interest Payment Date to and including
__________, 2005, interest shall be payable as follows: (i) interest at the
rate per annum of two percent (2%) shall be paid in cash, and (ii) interest
at the rate per annum of twelve percent (12%) shall be paid in kind through
the issuance of Additional Debentures having an aggregate principal amount
equal to the difference between (x) the amount of interest that would be
payable on the aggregate outstanding principal amount of Debentures
(including any Additional Debentures theretofore issued) at the rate per
annum of fourteen percent (14%) and (y) the amount of interest payable on
such Interest Payment Date in cash pursuant to the foregoing clause (i),
and on each Interest Payment Date thereafter (to and including the maturity
date of the Debentures), interest on the Debentures (including any
Additional Debentures theretofore issued) shall be paid solely in cash.
Notwithstanding the foregoing, the Company, in its sole and absolute
discretion, and upon written notice to the Trustee given 30 days prior to
an Interest Payment Date, may elect to pay in cash the whole or any portion
of any interest payment that is entitled to be paid in kind through the
issuance of Additional Debentures, and the Company's payment of any such
interest portion in cash in lieu of Additional Debentures shall have no
effect on the Company's rights to make future interest payments in
Additional Debentures as permitted by this Indenture.
Interest on the Debentures shall be computed (i) for any
full semiannual period for which a particular Interest Rate is applicable
on the basis of a 360-day year of twelve 30-day months and (ii) for any
period for which a particular Interest Rate is applicable shorter than a
full semiannual period for which interest is calculated, on the basis of a
30-day month and, for such periods of less than a month, the actual number
of days elapsed over a 30-day month.
The Debenture shall be in the same form and subject to
the same terms (including the rate of interest from time to time payable
thereon);
Principal of, and premium, if any, and interest on,
Global Debentures shall be payable to the Depositary in immediately
available funds.
Principal and premium, if any, and interest on Debentures
shall be payable at the office or agency of the Company maintained for such
purpose, initially the Corporate Trust Office of the Trustee. Interest on
Debentures will be payable by (i) for the cash portion, (x) by U.S. Dollar
check drawn on a bank in The City of New York mailed to the address of the
Person entitled thereto as such address shall appear in the Register, or
(y) upon application to the Registrar not later than the relevant Record
Date by a Holder of an aggregate principal amount in excess of $5,000,000,
by wire transfer in immediately available funds, and (ii) for the portion
(if any) paid by issuance of Additional Debentures, by the issuance and
delivery to the Trustee for authentication of certificates representing
Additional Debentures, registered in the name of the registered holder
thereof, in the aggregate principal amount of the interest then so payable.
Section 2.03. Execution and Authentication.
(a) Two Officers shall sign the Debentures for the Company by
manual or facsimile signature.
(b) If an Officer whose signature is on a Debenture no longer
holds that office at the time a Debenture is authenticated by the Trustee,
the Debenture shall nevertheless be valid.
(c) 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.
(d) The Trustee shall, upon a written order of the Company signed
by two Officers (an "Authentication Order"), authenticate Debentures for
original issue.
(e) The Trustee may (at the Company's expense) appoint an
authenticating agent acceptable to the Company 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 the Company or an Affiliate of the
Company.
Section 2.04. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where
Debentures may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Debentures may be presented for
payment ("Paying Agent"). The Registrar shall keep a register of the
Debentures and of their transfer and exchange. The Company may appoint one
or more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or
any of its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Debentures.
(c) The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Debenture Custodian with respect
to the Global Debentures. The Company initially appoints the Trustee to act
as Registrar and Paying Agent with respect to any Definitive Debentures.
Section 2.05. Paying Agent to Hold Money and Additional Debentures in
Trust.
Not later than 10:00 a.m. Eastern Time on each due date
of the principal or interest on any of the Debentures, the Company shall
deposit with the Paying Agent money or Additional Debentures, as the case
may be, in immediately available funds if the case may be, sufficient to
pay such principal or interest so becoming due. The Company 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 or Additional Debentures held by the Paying Agent for the payment
of principal, premium or interest on the Debentures, and shall notify the
Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all
money or Additional Debentures, as the case may be, held by it to the
Trustee. The Company at any time may require a Paying Agent to pay all
money and Additional Debentures, as the case may be, held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than
the Company or a Subsidiary) shall have no further liability for the money
or Additional Debentures. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit
of the Holders all money and Additional Debentures held by it as Paying
Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Debentures.
Section 2.06. 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 ss.
312(a). If the Trustee is not the Registrar, the Company 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 or such shorter time as the Trustee may
allow, as the Trustee may reasonably require of the names and addresses of
the Holders and the Company shall otherwise comply with TIA ss. 312(a).
Section 2.07. Transfer and Exchange.
(a) When Debentures are presented to the Registrar with a request
to register the transfer or to exchange them for an equal principal amount
of Debentures of other denominations, the Registrar shall register the
transfer or make the exchange if its requirements for such transactions are
met; provided, however, that any Debenture presented or surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar and the
Trustee duly executed by the Holder thereof or by his attorney duly
authorized in writing. To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Global
Debentures and Definitive Debentures upon the Company's order or at the
Registrar's request.
(b) 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 THE 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 THE INDENTURE, (II)
THIS GLOBAL DEBENTURE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO Section 2.07(a) OF
THE INDENTURE, (III) THIS GLOBAL DEBENTURE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO Section 2.12 OF THE INDENTURE AND
(IV) THIS GLOBAL DEBENTURE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(c) 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 canceled in whole and not in part, each such
Global Debenture shall be returned to or retained and canceled by the
Trustee in accordance with Section 2.12 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 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.
(d) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate
Global Debentures and Definitive Debentures upon the Company's
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 Company 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 2.11, 2.12 and 3.06 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 Company, 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 Company shall not be required (A) to issue, to
register the transfer of or to exchange 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 Company
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 Company 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 2.03 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.07 to effect a registration of transfer or exchange may
be submitted by facsimile.
Section 2.08. Replacement Debentures.
(a) If any mutilated Debenture is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Debenture, the Company 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 Company, an indemnity bond must be supplied by the
Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent
from any loss that any of them may suffer if a Debenture is replaced. The
Company may charge for its expenses in replacing a Debenture.
(b) Every replacement Debenture is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Debentures duly issued
hereunder.
Section 2.09. Outstanding Debentures.
(a) 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 2.09 as not outstanding. Except
as set forth in Section 2.10 hereof, a Debenture does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Debenture.
(b) If a Debenture is replaced pursuant to Section 2.08 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.
(c) If Debentures are considered paid under Section 4.01, they
cease to be outstanding and interest on them ceases to accrue.
Section 2.10. 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 the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, 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.
Debentures so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee,
the pledgee's right to deliver any such direction, waiver, or consent with
respect to the Debentures and that the pledgee is not the Company or any
other obligor upon the Debentures or any Affiliate of the Company or of
such other obligor.
Section 2.11. Temporary Debentures.
Until certificates representing Debentures are ready for
delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Debentures. Debentures
shall be substantially in the form of certificated Debentures but may have
variations that the Company considers appropriate for temporary Debentures
and as shall be reasonably acceptable to the Trustee. Without unreasonable
delay, the Company 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 2.12. Cancellation.
The Company at any time may deliver to the Trustee for
cancellation any Debentures previously authenticated and delivered
hereunder and all Debentures so delivered shall be promptly cancelled by
the Trustee. 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 in accordance with its
customary procedure. Certification of the destruction of all cancelled
Debentures shall be delivered to the Company. The Company may not issue new
Debentures to replace Debentures that it has paid or that have been
delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on the
Debentures, it 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. On or
prior to the fourth (4th) anniversary of the Issue Date, the Company may
pay defaulted interest in the form of Additional Debentures; thereafter,
the Company shall pay any defaulted interest in cash. The Company 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
Company shall fix or cause to be fixed each such special record date and
payment date; provided, however, that no such special record date shall be
less than five (5) days prior to the related payment date for such
defaulted interest. At least ten (10) days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states that it intends to make payment
pursuant to this Section 2.13 the special record date, the related payment
date and the amount of such interest to be paid.
Section 2.14. CUSIP Numbers.
The Company in issuing the Debentures may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the
Debentures or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the
Debentures, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Company will promptly notify the Trustee
of any change in the "CUSIP" numbers.
Section 2.15. Issuance of Additional Debentures
For the purposes of paying interest on the Debentures as
set forth in Section 2.02, the Company shall be entitled to issue
Additional Debentures under this Indenture which shall have identical terms
as the Initial Debentures issued on the Issue Date, other than with respect
to the date of issuance. The Initial Debentures issued on the Issue Date
and any Additional Debentures shall be treated as a single class for all
purposes under this Indenture.
With respect to any Additional Debentures, the Company
shall set forth in an officer's certificate, a copy of which shall be
delivered to the Trustee, the following information:
(i) the aggregate principal amount of such Additional
Debentures to be authenticated and delivered pursuant to this
Indenture; and
(ii) the issue date of such Additional Debentures.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Debentures pursuant to
the optional redemption provisions of Section 3.07 hereof, it shall furnish
to the Trustee, at least forty-five (45) days or such shorter period
allowed by the Trustee 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 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 and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances.
The Trustee shall promptly notify the Company 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.
At least thirty (30) days but not more than sixty (60)
days before a redemption date, the Company 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 for the Debentures and accrued and unpaid
interest, if any;
(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 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 Company defaults 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;
(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; and
(i) the CUSIP number.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense; provided,
however, that the Company shall have delivered to the Trustee the notice
called for by Section 3.01, and shall have provided the information to be
stated in such notice as provided in this Section 3.03.
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 plus accrued
and unpaid interest to such date. A notice of redemption may not be
conditional. Upon surrender of any of the Debentures called for redemption
to the Paying Agent, such Debentures shall be paid on the redemption date
at the redemption price, plus accrued and unpaid interest to such date.
Section 3.05. Deposit of Redemption Price.
On or prior to the redemption date, the Company 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 Company any money deposited with the Trustee or the Paying
Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Debentures to be
redeemed.
If the Company complies 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 Company 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.
Unless the Company shall default in the payment of
Debentures (and accrued interest) called for redemption, interest on such
Debentures shall cease to accrue after the redemption date.
Section 3.06. Debentures Redeemed in Part.
Upon surrender of a Debenture that is redeemed in part,
the Company shall issue and, upon the Company's written request, the
Trustee shall authenticate for the Holder at the expense of the Company a
new Debenture equal in principal amount to the unredeemed portion of the
Debenture surrendered.
Section 3.07. Optional Redemption.
(a) The Company may choose to redeem the Debentures at any time.
If it does so, it may redeem all or any portion of the Debentures, at once
or over time. To redeem the Debentures prior to ___________, 2003, the
Company must pay a redemption price equal to 100% of the principal amount
of the Debentures to be redeemed plus the Applicable Premium as of, and
accrued and unpaid interest, if any, to, the redemption date (subject to
the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date). Any notice to Holders
of such redemption shall include the appropriate calculation of the
redemption price, but need not include the redemption price itself. The
actual redemption price must be set forth in an Officers' Certificate
delivered to the Trustee no later than two Business Days prior to the
redemption date.
For purposes of this clause, the following words have the
meaning set forth below:
"Applicable Premium" means, with respect to any Debenture
on any redemption date, the greater of (1) 1.0% of the principal amount of
such Debenture and (2) the excess of (A) the present value at such
redemption date of (i) the redemption price of such Debenture on _________,
2003 (such redemption price being set forth in the table below) plus (ii)
all required interest payments due on such Debenture through __________,
2003, (excluding accrued but unpaid interest) computed using a discount
rate equal to the Treasury Rate on such redemption plus 100 basis points
over (B) the principal amount of such Debenture.
"Treasury Rate" means, as of any redemption date, the
yield to maturity as of such redemption date of the United States Treasury
Securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least tow Business Days prior to the redemption date
(or, if such statistical release is no longer published, any publicly
available source of similar market date)) most nearly equal to the period
from the redemption date to _________, 2003; provided, however, that if the
period from the redemption date to _________, 2003 is less than one year,
the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
(b) On or after [_________, 2003], the Company may redeem the
Debentures at any time, in whole or in part, upon not less than thirty (30)
nor more than sixty (60) days' written notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest and thereon to the date fixed for redemption,
if redeemed during the twelve-month period beginning on [________] of the
year indicated below:
Year Percentage
---- ----------
2003....................................... 112.000%
2004....................................... 107.000%
2005....................................... 103.500%
2006 and thereafter........................ 100.000%
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Debentures.
(a) The Company 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 Sections 2.02 and 2.03 hereof. Principal, premium, if
any, and interest shall be considered paid on the date due if the Paying
Agent (if other than the Company or a Subsidiary or Affiliate thereof)
holds, as of 10:00 a.m. New York City time on the due date, money deposited
in immediately available funds (or with respect to interest payments,
Additional Debentures validly issued by the Company pursuant to Sections
2.02 and 2.03 hereof), and designated for and sufficient to pay all
principal, premium, if any, and interest then due and the Paying Agent is
not prohibited from paying such money to Holders on such date pursuant to
the terms of this Indenture.
(b) The Company shall pay interest on overdue principal at the
rate equal to one percent (1%) per annum in excess of the then applicable
interest rate on the Debentures to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
(a) The Company 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 Company in respect of the
Debentures and this Indenture may be served. The Company 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 Company 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.
(b) The Company 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 Company of its obligation to
maintain an office or agency in the Borough of Manhattan, the City of New
York for such purposes. The Company 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.
(c) The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.04 hereof.
Section 4.03. Reports.
Whether or not the Company is required to do so by the
rules and regulations of the SEC, so long as any Debentures are
outstanding, the Company shall furnish to the Trustee within fifteen (15)
days of the time periods specified in the SEC's rules and regulations for
filing reports, (a) all quarterly and annual financial and other
information with respect to the Company and its consolidated Subsidiaries
that would be required to be contained in a filing with the SEC on Forms
10-Q or 10-K, as the case may be, if the Company were 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 the Company and its consolidated Subsidiaries,
showing in reasonable detail, either on the face of the financial
statements or in the footnotes thereto and in Management's Discussion and
Analysis of Financial Condition and Results of Operations, the financial
condition and results of operations of the Company and its Subsidiaries
and, with respect to the annual information only, a report thereon by the
Company's certified independent accountants, (b) all current reports that
would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports, and (c) as long as either of the Company or
Grove Worldwide is required to file information or reports with the
Commission by Section 13(a) or 15(d) under the Exchange Act, such
information or reports. The Trustee will provide, at the Company's expense,
copies of any such information or reports to any Holder that requests
copies of such information or reports. The Company will also comply with
the other provisions of TIA Section 314(a). Delivery of such reports,
information and documents to the Trustee is for informational purposes only
and the Trustee's receipt of such shall not constitute notice or
constructive notice of any information contain therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on an Officers' Certificate.)
Section 4.04. Compliance Certificate.
The Company shall, so long as any of the Debentures are
outstanding, deliver to the Trustee, (i) within ninety (90) days after the
end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Restricted Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its 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 Company has 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 Company is taking or
proposes 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 Company is taking or proposes to take with
respect thereto and (ii) 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 Company is taking or
proposes to take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its
Restricted 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.
Section 4.06. Stay, Extension and Usury Laws.
The Company 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
Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it 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.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, declare, order, pay,
make or set apart any sum for any Restricted Payment, if at the time of
making such Restricted Payment, the Company has made any portion of the
interest payment in Additional Debentures on either of the last two
scheduled Interest Payment Dates and if at the time of making such
Restricted Payment, and after giving effect to, such proposed Restricted
Payment,
(a) a Default or Event of Default shall have occurred and be
continuing,
(b) the Company could not incur at least $1.00 of additional
Indebtedness pursuant to clause (a) of Section 4.08, or
(c) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made since the Issue Date (the amount of
any Restricted Payment, if made other than in cash to be the Fair Market
Value thereof) would exceed an amount equal to the sum of:
(i) 50% of the aggregate amount of the Company's
Consolidated Net Income accrued during the period (treated as one
accounting period) from the beginning of the fiscal quarter during
which the Issue Date occurs to the end of the most recent fiscal
quarter ending at least 45 days prior to the date of such
Restricted Payment (or if the aggregate amount of the Company's
Consolidated Net Income for such period shall be a deficit, minus
100% of such deficit) plus
(ii) Capital Stock Sale Proceeds, plus
(iii) the sum of
(A) the aggregate net cash proceeds received by
the Company or any Restricted Subsidiary from the issuance or sale
after the Issue Date of convertible or exchangeable Indebtedness
that has been converted into or exchanged for Capital Stock (other
than Disqualified Stock) of the Company or of any Restricted
Subsidiary,
plus
(B) the aggregate amount by which Indebtedness
(other than Subordinated Obligations) of the Company or any
Restricted Subsidiary is reduced on the Company's consolidated
balance sheet after the Issue Date upon the conversion or exchange
of any Indebtedness (other than convertible or exchangeable debt
issued or sold after the Issue Date) for Capital Stock (other than
Disqualified Stock) of the Company or its Restricted Subsidiaries;
excluding in the case of (A) and (B) (i) any
such Indebtedness issued or sold to the Company or a Restricted
Subsidiary of the Company or an employee stock ownership plan or
trust established by the Company or any such Restricted Subsidiary
for the benefit of their employees and (ii) the aggregate amount
of any cash or other property distributed by the Company or any
Restricted Subsidiary upon any such conversion or exchange,
plus
(iv) the net reduction in Investments in any Person other
than the Company or a Restricted Subsidiary resulting from
dividends, repayments of loans or advances or other transfers of
property, in each case to the Company or any Restricted Subsidiary
from such Person, plus
(v) $1.0 million.
Notwithstanding the foregoing limitation, the following
shall not be prohibited:
(a) the payment of dividends on Capital Stock within 60
days of the declaration thereof if, on said declaration date, such
dividends could have been paid in compliance with the Indenture;
provided, however, that at the time of such payment of such
dividend, no Default or Event of Default shall have occurred or be
continuing (or result therefrom); provided further, however, that
such dividend shall be included in the calculation of the amount
of Restricted Payments;
(b) the purchase, repurchase, redemption, legal
defeasance, acquisition or retirement for value Capital Stock of
the Company in exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock of the Company
(other than Disqualified Stock and other than Capital Stock issued
or sold to a Restricted Subsidiary of the Company or an employee
stock ownership plan or trust established by the Company or any
such Restricted Subsidiary for the benefit of their employees);
provided, however, that:
(1) such purchase, repurchase, redemption, legal
defeasance, acquisition or retirement shall be excluded
from the calculation of the amount of Restricted
Payments; and (2) the Capital Stock Sale Proceeds from
such exchange or sale shall be excluded from the
calculation of Capital Stock Sale Proceeds;
(c) the purchase, repurchase, redemption, legal
defeasance, acquisition or retirement for any value of any
Subordinated Obligations in exchange for, by conversion into or
out of the proceeds of the substantially concurrent sale of,
Capital Stock of the Company (other than Disqualified Stock and
other than Capital Stock issued or sold to a Restricted Subsidiary
of the Company) or any Indebtedness permitted to be incurred
pursuant to Section 4.08, hereof;
(d) Restricted Payments not to exceed an aggregate amount
of $100,000 in any Fiscal Year, provided, however, that such
payments shall not be included in the calculation of the amount of
Restricted Payments, and
(e) the payment of cash dividends by Grove Worldwide to
the Company or by the Company to Grove Investors in amounts equal
to (i) the amounts required for the Company and Grove Investors to
pay any Federal, state or local income taxes (in each case on a
consolidated or unconsolidated basis, as required by law), (ii)
the amounts required for the Company and Grove Investors to pay
franchise taxes and other fees required to maintain its legal
existence and (iii) amounts required for the Company and Grove
Investors to pay general corporate overhead expenses in an amount
not to exceed $100,000 in any Fiscal Year; and
(f) the payment of cash dividends by Grove Worldwide to
the Company in an amount equal to the amounts required to pay cash
interest, principal and premium, on any Indebtedness permitted to
be incurred pursuant to Section 4.08 hereof.
Section 4.08. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly create or incur any
Indebtedness, and will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of Preferred Stock
or Disqualified Stock (other than to the Company or a Wholly-Owned
Subsidiary of the Company), unless after giving effect to the application
of the proceeds thereof, no Default or Event of Default would occur as a
consequence of such incurrence or be continuing following such incurrence
and either:
(a) after giving effect to the incurrence of such Indebtedness or
the issuance of shares of Preferred Stock and/or Disqualified Stock and the
application of the proceeds thereof, the Company's Interest Coverage Ratio
for the most recently ended four fiscal quarters for which internal
financial statements are available immediately preceding the date on which
such additional Indebtedness is incurred or such Preferred Stock and/or
Disqualified Stock would have been issued would be greater than 2.0 to 1.0;
provided, however, that if the Indebtedness which is the subject of a
determination under this clause (a) is Acquired Indebtedness, or
Indebtedness incurred in connection with the simultaneous acquisition of
any Person, business, property or assets, then the Company's Interest
Coverage Ratio shall be determined by giving effect (on a pro forma basis,
as if the transaction had occurred at the beginning of the four-quarter
period) to both the incurrence or assumption of such Acquired Indebtedness
or such other Indebtedness by the Company or any other Restricted
Subsidiary (together with any other Acquired Indebtedness or other
Indebtedness incurred or assumed by the Company and other Restricted
Subsidiaries in connection with acquisitions consummated by the Company
during such four-quarter period) and the inclusion in the Company's EBITDA
and Interest Expense of the EBITDA and Interest Expense of the acquired
Person, business, property or assets and any pro forma expense and cost
reductions calculated on a basis consistent with Regulation S-X under the
Securities Act as in effect and as applied as of the Issue Date (together
with the EBITDA and Interest Expense of, and pro forma expense and cost
reductions relating to, any other Person, business property or assets
acquired by the Company or any other Subsidiary during such four quarter
period); or
(b) such Indebtedness is
(i) Indebtedness represented by the Debentures issued
hereunder,
(ii) Indebtedness under the Grove Worldwide Credit
Agreement in a principal amount not to exceed $125,000,000, at any
one time outstanding;
(iii) Indebtedness under the New Senior Secured Credit
Facility in a principal amount not to exceed $50,000,000, at any
one time outstanding;
(iv) without duplication, Indebtedness not covered by any
other subclause of (b) which is outstanding on the Issue Date;
(v) Renewals, extensions, refinancings and refundings of
Indebtedness permitted by clauses (ii), (iii), (iv) or (viii) of
this Section 4.08(b) "Refinancing Indebtedness"; provided,
however, that any such Refinancing Indebtedness shall (a) be in an
aggregate principal amount not greater than the principal amount
of the Indebtedness being renewed, extended, refinanced or
refunded; (b) have a Weighted Average Life to Maturity at the time
such Refinancing Indebtedness is incurred which is not less than
the remaining Weighted Average Life to Maturity of the
Indebtedness being renewed, extended, refinanced or refunded; (c)
to the extent such Refinancing Indebtedness renews, extends,
refinances or refunds Indebtedness subordinated or pari passu to
the Debentures, such Refinancing Indebtedness shall be
subordinated or pari passu to the Debentures at least to the same
extent as the Indebtedness being renewed, extended, refinanced or
refunded; and (d) not include (x) Indebtedness of a Subsidiary
that renews, extends, refinances or refunds Indebtedness of the
Company or (y) Indebtedness of the Company or a Restricted
Subsidiary that renews, extends, refinances or refunds
Indebtedness of an Unrestricted Subsidiary;
(vi) intercompany Indebtedness by or among the Company
and its Restricted Subsidiaries; provided, however, that (A) if
the Company is the obligor on such Indebtedness, such Indebtedness
is expressly subordinated to the prior payment in full in cash of
all obligations in respect of the Debentures, and (B)(1) any
subsequent issuance or transfer of Capital Stock that results in
any such Indebtedness being held by a Person other than the
Company or another Restricted Subsidiary of the Company and (2)
any sale or other transfer of any such Indebtedness to a Person
other than the Company or another Restricted Subsidiary of the
Company shall be deemed, in each case, to constitute an incurrence
of Indebtedness by the Company or such Restricted Subsidiary, as
the case may be, that was not permitted by this clause (g);
(vii) Indebtedness arising under any performance or
surety bond or letter of credit for workmen's compensation entered
into in the ordinary course of business;
(viii) obligations under Hedging Contracts;
(ix) Indebtedness arising in connection with the terms
and provisions of the Plan;
(x) Additional secured Indebtedness not otherwise
permitted under this Section 4.08 in an aggregate outstanding
principal amount not to exceed $15,000,000 at any time; and
(xi) Additional unsecured Indebtedness not otherwise
permitted under this Section 4.08 in an aggregate outstanding
principal amount not to exceed $25,000,000 at any time.
Notwithstanding anything contrary in this Section 4.08,
the Company will not, directly or indirectly, create or incur any
Indebtedness which is senior to or pari passu to the Indebtedness
represented by the Debentures other than such Indebtedness set forth in
clause (b) above. Further, the Company will not incur any Indebtedness that
is contractually subordinated in right of payment to any other Indebtedness
of the Company unless such Indebtedness is also contractually subordinated
in right of payment to the Debentures on substantially identical terms;
provided, however, that no Indebtedness of the Company shall be deemed to
be contractually subordinated in right of payment to any other Indebtedness
of the Company solely by virtue of being unsecured.
Section 4.09. Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors may designate any Subsidiary of the Company to be an
Unrestricted Subsidiary if:
(a) the Subsidiary to be so designated does not own any
Capital Stock or Indebtedness of, or own or hold any Lien on any
assets of, the Company or any other Restricted Subsidiary, and
(b) either:
(1) the Subsidiary to be so designated has total
assets of $1,000 or less, or
(2) such designation is effective immediately upon
such entity becoming a Subsidiary of the Company.
Unless so designated as an Unrestricted Subsidiary, any Person that becomes
a Subsidiary of the Company will be classified as a Restricted Subsidiary;
provided, however, that such Subsidiary shall not be designated a
Restricted Subsidiary and shall be automatically classified as an
Unrestricted Subsidiary if either of the requirements set forth in clauses
(x) and (y) of the second immediately following paragraph will not be
satisfied after giving pro forma effect to such classification or if such
Person is a Subsidiary of an Unrestricted Subsidiary.
Except as provided in the first sentence of the preceding
paragraph, no Restricted Subsidiary may be redesignated as an Unrestricted
Subsidiary.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if, immediately after giving pro
forma effect to such designation,
(x) the Parent could Incur at least $1.00 of
additional Indebtedness pursuant to clause (1) of the
first paragraph of the covenant described under Section
4.08, and
(y) no Default or Event of Default shall have
occurred and be continuing or would result therefrom.
Any such designation or redesignation by the Board of
Directors will be evidenced to the Trustee by filing with the Trustee a
Board Resolution giving effect to such designation or redesignation and an
Officers' Certificate that:
(a) certifies that such designation or redesignation
complies with the foregoing provisions, and
(b) gives the effective date of such designation or
redesignation, such filing with the Trustee to occur
within 45 days after the end of the fiscal quarter of the
Company in which such designation or redesignation is
made (or, in the case of a designation or redesignation
made during the last fiscal quarter of the Company's
fiscal year, within 90 days after the end of such fiscal
year).
Section 4.10. Sale of Assets.
The Company will not consummate any Asset Sale:
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, conduct any business or
enter into or suffer to exist any transaction or series of transactions
(including the purchase, sale, transfer, assignment, lease, conveyance or
exchange of any Property or the rendering of any service) with, or for the
benefit of, any Affiliate of the Company (an "Affiliate Transaction"),
unless:
(a) the terms of such Affiliate Transaction are:
(1) set forth in writing, and
(2) no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those
that could be obtained in a comparable arm's-length
transaction with a Person that is not an Affiliate of the
Company,
(b) if such Affiliate Transaction involves aggregate
payments or value in excess of $5.0 million, the Board of
Directors (including a majority of the disinterested members of
the Board of Directors) approves such Affiliate Transaction and,
in its good faith judgment, believes that such Affiliate
Transaction complies with clause (a)(2) of this paragraph as
evidenced by a Board Resolution promptly delivered to the Trustee,
and
(c) if such Affiliate Transaction involves aggregate
payments or value in excess of $10.0 million, the Company obtains
a written opinion from an Independent Financial Advisor to the
effect that the consideration to be paid or received in connection
with such Affiliate Transaction is fair, from a financial point of
view, to the Company and the Restricted Subsidiaries.
Notwithstanding the foregoing limitation, the Company or
any Restricted Subsidiary may enter into or suffer to exist the following:
(a) any transaction or series of transactions between the
Company and one or more Restricted Subsidiaries or between two or
more Restricted Subsidiaries in the ordinary course of business,
provided that no more than 5% of the total voting power of the
Voting Stock (on a fully diluted basis) of any such Restricted
Subsidiary is owned by an Affiliate of the Company (other than a
Restricted Subsidiary);
(b) any Restricted Payment permitted to be made pursuant
to the Section 4.07 or any Permitted Investment permitted to be
made pursuant to Section 4.16 hereof; and
(c) the payment of compensation (including amounts paid
pursuant to employee benefit plans) for the personal services of
officers, directors and employees of the Company or any of the
Restricted Subsidiaries, so long as the Board of Directors in good
faith shall have approved the terms thereof and deemed the
services theretofore or thereafter to be performed for such
compensation to be fair consideration therefor; and
(d) loans and advances to employees made in the ordinary
course of business and consistent with the past practices of the
Company or such Restricted Subsidiary, as the case may be,
provided that such loans and advances do not exceed $[ ] million
in the aggregate at any one time outstanding;
(e) transactions provided for or specifically
contemplated by the Plan;
(f) any transaction if such transaction is with any
Person solely in its capacity as a holder of Indebtedness or
Capital Stock of the Company or any of its Restricted
Subsidiaries, where such Person is treated no more favorably than
any other Person who is not a holder of Indebtedness or Capital
Stock of the Company in a comparable arm's-length transaction; and
(g) any agreement as in effect on the Issue Date or any
transaction contemplated thereby.
Section 4.12. Limitation on Liens.
The Company shall not, and shall not permit any
Restricted Subsidiary to, create, incur or otherwise cause or suffer to
exist or become effective any Liens of any kind (other than Customary
Permitted Liens) upon any property or asset of the Company, or such
Restricted Subsidiary or any shares of stock or debt of any Restricted
Subsidiary (other than under the Grove Worldwide Credit Agreement) which
owns property or assets, now owned or hereafter acquired, unless (i) if
such Lien secures Indebtedness which is pari passu with the Debentures,
then the Debentures are secured on an equal and ratable basis with the
obligations so secured until such time as such obligation is no longer
secured by a Lien or (ii) if such Lien secures Indebtedness which is
subordinated to the Debentures, any such Lien shall be subordinated to the
Lien granted to the Holders to the same extent as such subordinated
Indebtedness is subordinated to the Debentures.
Section 4.13. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force
and effect (i) its corporate existence, and the corporate, partnership or
other existence of each of its Restricted Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from
time to time) of the Company or any such Restricted Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of the Company and
its Restricted Subsidiaries; provided, however, that the Company shall not
be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Restricted
Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and its Restricted Subsidiaries, taken as a whole, and that
the loss thereof is not adverse in any material respect to the Holders.
Section 4.14. Offer to Purchase Upon Change of Control.
If a Change of Control occurs, the Company shall make an
offer (a "Change of Control Offer") to each Holder to purchase all or any
part, equal to $1,000 or an integral multiple of $1,000, of the Holder's
Debentures at an offer price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon to the
date fixed for purchase (the "Change of Control Payment").
Within thirty (30) business days following a Change of
Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and
offering to purchase the Debentures on the date specified in the notice,
which date shall be no earlier than thirty (30) days and no later than
sixty (60) days from the date the notice is mailed (the "Change of Control
Payment Date") and described in the notice. The Company shall comply with
the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent those laws and
regulations are applicable to the purchase of the Debentures as a result of
a Change of Control.
On the Change of Control Payment Date, the Company shall,
to the extent lawful, (1) accept for payment all Debentures or portions of
Debentures properly tendered under 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 of the Debentures 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 of the Debentures being
purchased by the Company.
The Paying Agent shall mail promptly to each Holder of
Debentures so tendered the Change of Control Payment for the 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,
provided, however, that each new Debenture shall be in a principal amount
of $1,000 or an integral multiple of $1,000.
The Company shall notify each Holder of the results of
the Change of Control Offer on or as soon as practicable after the Change
of Control Payment Date.
The Change of Control provisions described in this
Section 4.14 shall be applicable notwithstanding any other provisions of
this Indenture.
The Company shall not be required to make a Change of
Control Offer following 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 4.14 and
purchases all Debentures validly tendered and not withdrawn under the
Change of Control Offer.
Section 4.15. Limitation on Pledges and Issuance of Capital Stock of
Restricted Subsidiaries.
The Company shall not and shall not permit any of its
Restricted Subsidiaries (except for Grove Worldwide and any Subsidiaries of
Grove Worldwide to the extent permitted by the Grove Worldwide Credit
Agreement and the New Senior Secured Facility) to assign, pledge or
otherwise encumber or dispose of any Capital Stock. Further, the Company
shall not permit any of its Restricted Subsidiaries to issue any Capital
Stock, other than (a) to the Company or a Wholly-Owned Subsidiary of the
Company that is a Restricted Subsidiary or (b) pursuant to 4.07 hereof.
Section 4.16. Investments.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly make or maintain any
Investment except (i) to the extent that the amount of such Investment
would be permitted to be made as a Restricted Payment in compliance with
Section 4.07 hereof, after the Issue Date and (ii) any of the following
(which are defined as "Permitted Investments"):
(a) Investments existing on the date of this Agreement;
(b) Investments in Cash Equivalents;
(c) Investments in accounts, contract rights and chattel paper
(each as defined in the Uniform Commercial Code), notes receivable and
similar items arising or acquired in the ordinary course of business
consistent with the past practice of the Company and its Restricted
Subsidiaries;
(d) Investments received in settlement of amounts due to the
Company or any Restricted Subsidiary of the Company effected in the
ordinary course of business;
(e) Investments by (i) the Company in any Restricted Subsidiary,
or by any Restricted Subsidiary in the Company or any other Restricted
Subsidiary, or (ii) or any Restricted Subsidiary in connection with, or in
anticipation of, a Permitted Acquisition;
(f) Investments incurred in connection with the sale of the Grove
Worldwide training facility in an amount not to exceed $2,000,000; and
(g) Investments not otherwise permitted hereby in an aggregate
outstanding amount not to exceed $5,000,000 at any time.
Section 4.17. Payments for Consent.
Neither the Company 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
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 that consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
Section 4.18. Consummation Of Plan Of Reorganization.
No provision of this Indenture shall prevent the Company
or any Restricted Subsidiary of the Company from consummating the Plan and
the transactions contemplated thereby.
Section 4.19. Operating Leases; Sale/Leasebacks.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, become or remain liable as lessee or guarantor
or other surety with respect to any operating lease, unless that aggregate
amount of all rents paid or accrued under all such operating leases shall
not exceed $10,000,000 in any Fiscal Year.
(b) The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction
covering any property with an aggregate Fair Market Value in excess of
$2,000,000.
Section 4.20. Notice of Certain Events
The Company shall give prompt written notice to the Trustee and
any Paying Agent of (a) any Default or Event of Default and (b) any cure or
waiver of any Default or Event of Default.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation,
and other than a merger of a wholly owned Subsidiary into the Company), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions to another Person unless:
(a) the Company is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made (the "Successor Company") is a
corporation organized or existing under the laws of the United States, any
state thereof or the District of Columbia;
(b) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Successor
Company assumes all the obligations of the Company under the Debentures and
this Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee;
(c) immediately after such transaction, no Default or Event of
Default exists; and
(A) immediately after giving effect to such
transaction or series of transactions on a pro forma
basis, the Company or the Successor Company, as the case
may be, would be able to incur at least $1.00 of
additional Indebtedness under clause (a) of the first
paragraph of the covenant described under Section 4.07
and
(B) immediately after giving effect to such
transaction or series of transactions on a pro forma
basis, the Company or the Successor Company shall have a
Consolidated Net Worth in an amount which is not less
than the Consolidated Net Worth of the Company
immediately prior to such transaction or series or
transactions.
Prior to the proposed transaction, the Company
shall deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel each of which shall state that such
consolidation, merger or transfer and such supplemental
indenture comply with this Article 5 and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
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 Company in accordance with Section
5.01 hereof, the successor corporation formed by such consolidation or into
or with which the Company 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 the "Company" shall refer instead
to the successor corporation and not to the Company), and may exercise
every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest on
the Debentures and such default continues for a period of thirty (30) days;
(b) the Company defaults in the payment when due of principal of
or premium, if any, on the Debentures;
(c) the Company fails to comply for thirty (30) days with any of
the provisions of Section 5.01 hereof;
(d) the Company or any of its Restricted Subsidiaries, for thirty
(30) days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the then outstanding Debentures,
fails to comply with any of its other agreements in this Indenture or the
Debentures;
(e) the 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 the Company or any of its Restricted
Subsidiaries, or the payment of which is guaranteed by the Company or any
of its Restricted Subsidiaries, whether the Indebtedness or guarantee now
exists or is created after the date hereof, which default (i) is caused by
a failure to pay principal at final maturity (after giving effect to any
grace period provided for) or (ii) results in the acceleration of the
Indebtedness prior to its scheduled maturity and, in each case, the
principal amount of such Indebtedness, together with the principal amount
of any other Indebtedness under which there has been such a default or
failure, aggregates $5.0 million or more;
(f) failure by the Company or any of its Significant Subsidiaries,
or a group of Subsidiaries that taken together would constitute a
Significant Subsidiary, to pay final judgments aggregating in excess of
$5.0 million, which judgments are not paid, discharged or stayed for a
period of 60 consecutive days;
(g) the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, 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, or
(iv) makes a general assignment for the benefit of its
creditors; or
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary in an
involuntary case; or
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary; 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. Notwithstanding the foregoing, if an Event of Default
specified in clause (g) or (h) of Section 6.01 hereof occurs with respect
to the Company, all outstanding Debentures shall be due and payable
immediately without further action or notice. The Holders of a majority in
aggregate principal amount of the Debentures then outstanding by written
notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default (except
nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
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, 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 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.
Section 6.04. Waiver of Past Defaults.
Holders of not less than 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 an
existing Default or Event of Default and its consequences hereunder, except
(1) a continuing Default or Event of Default in the payment of the
principal of, premium 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) and (2) a
default with respect to a provision that under Section 9.02 cannot be
amended without the consent of each Holder affected. 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 or that may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder may pursue a remedy with respect to this
Indenture or the Debentures only if:
(a) the Holder 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 or Holders 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 may not use this Indenture to affect, disturb or
prejudice the rights of another Holder or to obtain a preference or
priority over another Holder.
Section 6.07. Rights of Holders of Debentures to Receive Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder to receive payment of principal, premium 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 Company for
the whole amount of principal of, premium 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.
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 allowed in any judicial proceedings
relative to the Company (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 6, it shall pay out the money in the following order:
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 Collateral Agent and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the
Debentures for principal, premium and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the
Debentures for principal, premium and interest, respectively;
Third: without duplication, to the Holders for any other
Obligation owing to the Holders under this Indenture, the Debentures; and
Fourth: to the Company 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 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 6.11 does not apply to a
suit by the Trustee, a suit by a Holder 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 (but need not
confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).
(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), (c), (e) and (f) of this Section and Section 7.02.
(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 Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
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.
(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; provided, however,
that the Trustee's conduct does not constitute willful misconduct or
negligence.
(e) 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.
(f) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by a Responsible Officer of the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
specific Default or Event of Default, the Debentures and this Indenture.
(g) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the Company.
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
Company or any Affiliate of the Company 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 SEC 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 Company's use of the
proceeds from the Debentures or any money paid to the Company or upon the
Company's 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 a
notice of the Default or Event of Default within 30 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.
Section 7.06. Reports by Trustee to the Holders.
Within 60 days after each [ ] beginning with [_________,
20__], 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 ss. 313(a) (but if no event described
in TIA ss. 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall
comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the
Holders shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Debentures are listed in accordance with TIA
ss. 313(d). The Company shall promptly notify the Trustee when the
Debentures are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company 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 Company 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 Company shall indemnify the Trustee or any
predecessor Trustee against any and all losses, claims, damages, penalties,
fines, liabilities or expenses, including incidental and out-of-pocket
expenses and reasonable attorneys fees ("losses") 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 Company (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company 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 losses may be attributable to its negligence or bad faith. The
Trustee shall notify the Company promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld. The
Company need not reimburse any expense or indemnify against any loss
liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this Indenture.
To secure the Company's 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(g) or Section 6.02(h)
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.
The Trustee shall comply with the provisions of TIA ss.
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 Company. The
Holders of a majority in principal amount of the then outstanding
Debentures may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company 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 Company shall promptly
appoint a successor Trustee.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company, or the Holders 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 who
has been a Holder for at least six months, fails to comply with Section
7.10, such Holder 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 Company. 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. Subject to the Lien provided
for in Section 7.07 hereof, the retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee; provided,
however, that all sums owing to the Trustee hereunder shall have been paid.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
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 $50.0 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 ss. 310(a)(1), (2) and (5). The Trustee is subject
to TIA ss. 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned
or been removed shall be subject to TIA ss. 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 Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any
time, elect to have either Section 8.02 or 8.03 hereof applied to all
outstanding Debentures upon compliance with the conditions set forth below
in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.02, the Company shall, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be
deemed to have been discharged from its 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 Company 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 its
other obligations under such Debentures and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged
hereunder or until the Debentures have been paid in full: (a) the rights of
Holders of outstanding Debentures to receive solely from the trust fund
described in Section 8.05 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 Company's
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 Company's obligations in connection therewith and
(d) this Article 8. Subject to compliance with this Article 8, the Company
may exercise its 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 Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03, the Company shall, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the covenants set forth in Article 4
hereof except for Sections 4.01 and 4.02, and, 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 Company 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 Company's 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 (h) 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:
(a) the Company 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 shall be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium,
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,
and the Company must specify whether the Debentures are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has 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 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 shall not recognize income,
gain or loss for federal income tax purposes as a result of such Legal
Defeasance and shall be subject to 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
Company 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 shall not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and shall be subject to 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 occur under Sections
6.01(g) or 6.01(h) hereof 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 Company or
any of its Restricted Subsidiaries is a party or by which the Company or
any of its Restricted Subsidiaries is bound;
(f) on the 123rd day following the deposit, the trust funds shall
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company; and
(h) the Company 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 Company 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 Company 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 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time
to time upon the request of the Company 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 Company.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, 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 Company on its request or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Debenture shall thereafter, as an unsecured creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company 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 Company 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 thirty (30) days from the date of such
notification or publication, any unclaimed balance of such money then
remaining shall be repaid to the Company.
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 reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
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 Company makes any payment of
principal of, premium, if any, or interest on any Debenture following the
reinstatement of its obligations, the Company 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 the Holders.
Notwithstanding the provisions of Section 9.02 hereof,
the Company and the Trustee may amend or supplement this Indenture or the
Debentures without the consent of any Holder:
(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 Company's obligations to
the Holders by a successor to the Company pursuant to Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal rights
hereunder of any Holder;
(e) to provide for the issuance of Additional Debentures in
accordance with the provisions set forth in this Indenture; or
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a
resolution of its Board of Directors 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
Company 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.
Section 9.02. With Consent of the Holders.
Except as provided below in this Section 9.02, the
Company and the Trustee may amend or supplement this Indenture 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 Company accompanied by a
resolution of its Board of Directors 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 as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Company 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
under this Section 9.02 to approve the particular form of any proposed
amendment, supplement 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 Company shall mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver.
Any failure of the Company 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 Company 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;
(c) reduce the rate of or extend the time for payment of interest,
including default interest, on any Debenture;
(d) make any Debenture payable in money other than that stated in
the Debentures; or
(e) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders to receive payments of
principal of or interest on the Debentures.
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 is a continuing consent by the
Holder and every subsequent Holder 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 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 Company 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 9 if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Company may not sign an amendment or
supplemental Indenture until the Board of Directors approves it. In
executing any amended or supplemental indenture, the Trustee shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officers' 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
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of
further effect as to all Debentures issued hereunder, when:
(a) either:
(i) all Debentures that have been authenticated (except
lost, stolen or destroyed Debentures that have been replaced or
paid and Debentures for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have been
delivered to the Trustee for cancellation; or
(ii) all Debentures that have not been delivered to the
Trustee for cancellation have become due and payable by reason of
the making of a notice of redemption or otherwise or will become
due and payable within one year and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust
funds in trust solely for the benefit of the Holders, cash in U.S.
dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Debentures not delivered
to the Trustee for cancellation for principal, premium and accrued
interest to the date of maturity or redemption;
(b) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company is a
party or by which the Company is bound;
(c) the Company has paid or caused to be paid all sums payable by
it under this Indenture; and
(d) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money and/or Government
Securities toward the payment of the Debentures at maturity or the
redemption date, as the case may be.
The Company shall deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Section 10.02. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 10.03 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 10.02, the "Trustee") pursuant to Section 10.01
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 Company 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 and interest,
but such money need not be segregated from other funds except to the extent
required by law.
Section 10.03. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal of,
premium 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 Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such
Debenture shall thereafter look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company 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
Company cause to be published once, in 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 Company.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA ss. 318(c), the imposed duties
shall control.
Section 11.02. Notices.
Any notice or communication by the Company 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 Company:
Grove Holdings, Inc.
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000-0000]
Attention: General Counsel
Facsimile No.: (000)000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP Company Counsel
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxx Xxxxxx
Facsimile No.: (000)000-0000
If to the Trustee:
The Bank of New York
[Trustee's Address]
Facsimile No.: [_________]
Attention: Corporate Trust Department
The Company 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 (5) Business Days after being deposited
in the mail, postage prepaid, if mailed; when receipt acknowledged, if
telecopied; and the 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 ss. 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 Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same
time.
Section 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with
other Holders with respect to their rights under this Indenture or the
Debentures. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA ss. 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the
Trustee to take any action under any provision of this Indenture, the
Company 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 11.05 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 complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
Section 11.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been complied with.
Section 11.05. 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 ss. 314(a)(4)) shall comply with the
provisions of TIA ss. 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;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 11.06. 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 11.07. No Personal Liability of Directors, Officers, Employees
and Stockholders.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company shall have any liability for any
obligations of the Company under the Debentures, this 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
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 SEC
that such a waiver is against public policy.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, 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 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of
any other Person. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
Section 11.10. Successors.
All covenants and agreements of the Company in this
Indenture and the Debentures shall bind its successors. All covenants and
agreements of the Trustee in this Indenture shall bind its successors.
Section 11.11. 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.
Section 11.12. 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 11.13. 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]
SIGNATURES
Dated as of September [ ], 2001
GROVE HOLDINGS, INC.
By:
-------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------
Name:
Title:
