Exhibit 4.3
EXHIBIT A-1
(Face of Debenture)
11 5/8% Senior Discount Debentures due 2009
No. _____ $_________________
CUSIP NO.
Grove Holdings LLC and Grove Holdings Capital, Inc. promise to
pay to_________________ or registered assigns, the principal sum of
________________ Dollars on______________, 2009.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
GROVE HOLDINGS LLC
By:______________________________
Name:
Title:
GROVE HOLDINGS CAPITAL, INC.
By:______________________________
Name:
Title:
Dated: ___________
This is one of the [Global]
Debentures referred to in the
within-mentioned Indenture:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:_______________________________
Authorized Signatory
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(Back of Debenture)
11 5/8% Senior Discount Debentures due 2009
[Unless and until it is exchanged in whole or in part for
Debentures in definitive form, this Debenture may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as may be requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such other entity as may be requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the
registered owner hereof, Cede & Co., has an interest herein.](1)
"FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH
ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE
ISSUE PRICE IS $568.01, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $431.99, THE
ISSUE DATE IS APRIL 29, 1998 AND THE YIELD TO MATURITY IS 11 5/8% PER ANNUM."
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Grove Holdings LLC, a Delaware limited liability
company ("Holdings") and Grove Holdings Capital, Inc., a Delaware corporation
("Grove Capital" and together with Holdings, the "Issuers"), promise to pay
interest on the principal amount of this Debenture at 11 5/8% per annum from
November 1, 2003 until maturity, shall pay the aggregate principal amount of
this Debenture on May 1, 2009 and shall pay the Liquidated Damages payable
pursuant to Section 5 of the Registration Rights Agreement referred to below.
The Issuers will pay interest and Liquidated Damages, if any, semi-annually on
May 1 and November 1 (each an "Interest Payment Date") of each applicable year,
or if any such day is not a Business Day, on the next succeeding Business Day.
The Debentures will accrete at a rate of 11 5/8% per annum, compounded
semi-annually to an aggregate principal amount of $88,000,000 at May 1, 2003.
Thereafter, interest on the Debentures will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from May 1, 2003.
The Issuers shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuers will pay interest on the
Debentures (except defaulted interest) and Liquidated Damages to the Persons who
are registered Holders of Debentures at the close of business on the April 15 or
October 15 next preceding the Interest Payment Date, even if such Debentures are
canceled after such record date and on or before such Interest Payment Date,
except as
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(1) This paragraph should be included only if the Debenture is issued in global
form.
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provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Debentures will be payable as to principal, premium and Liquidated Damages,
if any, and interest at the office or agency of the Issuers maintained for such
purpose within or without the City and State of New York, or, at the option of
the Issuers, payment of interest and Liquidated Damages may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest, premium and Liquidated
Damages on, all Global Debentures and all other Debentures the Holders of which
shall have provided wire transfer instructions to the Issuers or the Paying
Agent. Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
3. PAYING AGENT AND REGISTRAR. Initially, United States Trust
Company of New York, the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Issuers may change any Paying Agent or Registrar without
notice to any Holder. The Issuers or any of their Subsidiaries may act in any
such capacity.
4. INDENTURE. The Issuers issued the Debentures under an
Indenture dated as of April 29, 1998 (the "Indenture") by and among the Issuers
and the Trustee. The terms of the Debentures include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Section 77aaa-77bbbb). The
Debentures are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Debenture conflicts with the express provisions of the
Indenture, the provisions of the indenture shall govern and be controlling. The
Debentures are general unsecured Obligations of the Issuers limited to $150.0
million in aggregate principal amount at maturity.
5. OPTIONAL REDEMPTION.
(a) The Issuers shall have the option to redeem the
Debentures, in whole or in part, upon not less than 30 nor more than 60 days'
notice, in cash at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on May 1 of the years indicated below:
Year Percentage
2003............................................... 105.813%
2004............................................... 103.875%
2005............................................... 101.938%
2006 and thereafter................................ 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to May 1, 2001, the Issuers may (but will not
have the obligation to) on any one or more occasions redeem up to 35% of the
aggregate principal amount of Debentures originally issued at a redemption price
equal to 111.625% of the Accreted Value (determined at the date of redemption)
thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the redemption date, with the net cash proceeds of one or more Public
Equity Offerings; provided that at least 65% of the aggregate principal amount
of Debentures originally issued remain outstanding immediately after the
occurrence of such redemption (excluding Debentures held by Holdings and its
Subsidiaries); and provided further, that such redemption shall occur within 60
days of the date of the closing of such Public Equity Offering.
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6. MANDATORY REDEMPTION. Except as set forth in
paragraph 7 below, the Issuers shall not be required to make mandatory
redemption or sinking fund payments with respect to the Debentures.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Issuers shall be
required to make an offer (a "Change of Control Offer") to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of each Holder's
Debentures at a purchase price equal to 101% of the Accreted Value thereof on
the date of purchase (if such date of purchase is prior to May 1, 2003) or 101%
of the aggregate principal amount thereof (if such date of purchase is on or
after May 1, 2003) plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the date of purchase (the "Change of Control Payment").
Within 30 days following any Change of Control, the Issuers shall mail a notice
to each Holder setting forth the procedures governing the Change of Control
Offer as required by the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $10.0
million, the Issuers will be required to make an offer to all Holders of
Debentures (an "Asset Sale Offer") to purchase the maximum principal amount of
Debentures that may be purchased out of the Excess Proceeds, at an offer price
in cash in an amount equal to 100% of Accreted Value thereof on the date of
purchase (if such date of purchase is prior to May 1, 2003) or 101% of the
aggregate principal amount thereof (if such date of purchase is on or after May
1, 2003) plus accrued and unpaid interest and Liquidated Damages thereon, if
any, to the date of repurchase, in accordance with the procedures set forth in
the Indenture. To the extent that any Excess Proceeds remain after consummation
of an Asset Sale Offer, Holdings may use such Excess Proceeds for any purpose
not otherwise prohibited by the Indenture. If the aggregate principal amount of
Debentures tendered into such Asset Sale Offer surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Debentures
to be purchased on a pro rata basis. Upon completion of such offer to purchase,
the amount of Excess Proceeds shall be reset at zero.
(c) Holders of Debentures that are the subject of an offer to
purchase will receive a Change of Control Offer or Asset Sale Offer from the
Issuers prior to any related purchase date and may elect to have such Debentures
purchased by completing the form titled "Option of Holder to Elect Purchase"
appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed
by first-class mail, at least 30 days but not more than 60 days before the
redemption date to each Holder whose Debentures are to be redeemed at its
registered address. Debentures in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the
Debentures held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Debentures or portions thereof called for
redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Debentures are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Debentures may be registered and Debentures
may be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Issuers may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Issuers need not
exchange or register the transfer of any Debenture or portion of a Debenture
selected for redemption, except for the unredeemed portion of any Debenture
being redeemed in part. Also, the Issuers need not exchange or register the
transfer of any Debentures for aperiod of 15 days before a selection of
Debentures to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
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10. PERSONS DEEMED OWNERS. The registered Holder of a
Debenture may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Debentures may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Debentures and Additional Debentures, if any, voting as a
single class, and any existing default or compliance with any provision of the
Indenture or the Debentures may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Debentures and Additional
Debentures, if any, voting as a single class. Without the consent of any Holder
of a Debenture, the Indenture or the Debentures may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Debentures in addition to or in place of certificated Debentures, to provide for
the assumption of the Issuers' obligations to Holders of the Debentures in case
of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Debentures or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act, or to provide
for the Issuance of Additional Debentures in accordance with the limitations set
forth in the Indenture.
12. DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest on, or Liquidated
Damages with respect to the Debentures; (ii) default in payment when due of
principal of or premium, if any, on the Debentures; (iii) failure by Holdings or
any of its Restricted Subsidiaries for 30 days after receipt by the Issuers of
notice from the Trustee or by the Issuers and the Trustee of notice from the
Holders of at least 25% in principal amount of Debentures then outstanding to
comply with the provisions described under Sections 4.07, 4.09, 4.10 or 4.14
hereof; (iv) failure by Holdings or any of its Restricted Subsidiaries for 60
days after receipt by the Issuers of notice from the Trustee or by the Issuers
and the Trustee of notice from the Holders of at least 25% in principal amount
of Debentures then outstanding to comply with any of its other agreements in the
Indenture or this Debenture; (v) 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 Holdings or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by Holdings or
any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the date of the Indenture, which default (a) is
caused by a failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b) results in
the acceleration of such Indebtedness prior to its stated maturity and, in each
case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $10.0
million or more and provided that in the case of any guarantees, a default shall
not be deemed to occur unless Holdings or such Restricted Subsidiary, as
applicable, defaults in its payment obligations under such guarantee after
demand has been made in accordance with the terms of such guarantee; (vi)
failure by Holdings or any of its Restricted Subsidiaries to pay final judgments
aggregating in excess of $10.0 million (net of any amount with respect to which
a reputable insurance company with assets over $100.0 million has acknowledged
liability in writing), which judgments are not paid, discharged or stayed for a
period of 60 days; (vii) failure by Grove Worldwide LLC or its subsidiaries to
apply the proceeds from the Offering as set forth under the caption "Use of
Proceeds" in the Offering Memorandum prior to the 10th Business Day after the
date hereof; and (vii) certain events of bankruptcy or insolvency with respect
to Holdings or any of its Significant Subsidiaries.
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Debentures may declare all the Debentures to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising
from certain events of
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bankruptcy or insolvency, all outstanding Debentures will become due and payable
without further action or notice. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Debentures may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Debentures notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the
Debentures then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Debentures waive any existing Default or Event of Default
and its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Debentures. The
Issuers are required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Issuers are required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Issuers or their Affiliates, and may otherwise deal
with the Issuers or their Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A member, director, officer,
employee, incorporator or stockholder, of the Issuers, as such, shall not have
any liability for any obligations of the Issuers under the Debentures or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Debenture waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Debentures.
15. AUTHENTICATION. This Debenture shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL
DEBENTURES AND RESTRICTED DEFINITIVE DEBENTURES. In addition to the rights
provided to Holders of Debentures under the Indenture, Holders of Restricted
Global Debentures and Restricted Definitive Debentures shall have all the rights
set forth in the Registration Rights Agreement dated as of April 29, 1998,
between the Issuers and the parties named on the signature pages thereof or, in
the case of Additional Debentures, Holders of Restricted Global Debentures and
Restricted Definitive Debentures shall have the rights set forth in one or more
registration rights agreements, if any, between the Issuers and the other
parties thereto, relating to rights given by the Issuers to the purchasers of
any additional Debentures (collectively, the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Issuers have
caused CUSIP numbers to be printed on the Debentures and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
theDebentures or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
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The Issuers will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Grove Holdings LLC
201 Main Street
Fort Worth, Texas 76102
Attention: Keith Simmons, Esq.
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ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we)
assign and transfer this Debenture to (Insert assignee's soc. sec. or tax I.D.
no.)
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Debenture on the books of the Issuers. The agent may substitute
another to act for him.
Date: ______________
Your Signature: _____________________________
(Sign exactly as your name appears on the face of this Debenture)
Signature Guarantee: ________________________
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased by
Holdings pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.14
If you want to elect to have only part of the Debenture
purchased by Holdings pursuant to Section 41.0 or Section 4.14 of the Indenture,
state the amount you elect to have purchased:
$ ____________
Date: ________________
Your Signature: _____________________________
(Sign exactly as your name appears on the face of this Debenture)
Signature Guarantee: ________________________
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SCHEDULE OF TRANSFER OR EXCHANGES OF INTERESTS IN THE GLOBAL
DEBENTURE(2)
The following transfers or exchanges of a part of this Global
Debenture for an interest in another Global Debenture or for a Definitive
Debenture, or transfers or exchanges of a part of another Global Debenture or
Definitive Debenture for an interest in this Global Debenture, have been made:
Principal Amount
Amount of Amount of Increase at maturity of
decrease in in Principal this Global Signature of
Principal Amount Amount Debenture authorized officer
at maturity of at maturity of following such of Trustee or
this Global this Global decrease (or Debenture
Date of Exchange Debenture Debenture increase) Custodian
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(2) This schedule should only be included if the Debentures are issued in global
form.
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