EXHIBIT 4.6
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A NOMINEE OF THE DEPOSITARY.
THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE TO THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY OR TO ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) 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
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, (II) EXCEPT AS OTHERWISE
PROVIDED IN THE INDENTURE, THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.07 OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE MANITOWOC
COMPANY, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE MANITOWOC COMPANY, INC.
10 1/2 % Senior Subordinated Note due 2012
$________ Principal Amount
CUSIP No. ___________
No. __
THE MANITOWOC COMPANY, INC., a Wisconsin corporation (the "COMPANY",
which term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to CEDE & CO., or its registered assigns,
the principal sum of $___________ on August 1, 2012.
Interest Payment Dates: February 1 and August 1, commencing February
1, 2003.
Regular Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually by its duly authorized signatories.
THE MANITOWOC COMPANY, INC.
By:
-----------------------------------
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 10 1/2 % Senior Subordinated Notes due 2012
described in the within-mentioned Indenture.
Date: _______, 2002
BNY MIDWEST TRUST COMPANY, as Trustee
By:
-----------------------------------
Authorized Signatory
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{REVERSE SIDE OF NOTE}
THE MANITOWOC COMPANY, INC.
10 1/2 % Senior Subordinated Note due 2012
1. PRINCIPAL AND INTEREST.
The Company shall pay the principal of this Note on August 1, 2012.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate per annum
shown above.
Interest will be paid semi-annually in arrears on each Interest
Payment Date, commencing February 1, 2003. Interest on this Note will accrue
from the latest date to which interest has been paid on the Notes or, if no
interest has been paid, the Issue Date; PROVIDED, HOWEVER, that any accrued and
unpaid interest on the Initial Notes (as defined in the Indenture) for which
this Notes was exchanged shall be deemed to have accrued with respect to, and
shall be paid with respect to, this Note. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum that is the then applicable interest rate borne by the Notes.
2. METHOD OF PAYMENT.
The Company shall pay interest on the principal amount of the Notes on
each February 1 and August 1 to the persons who are Holders of the relevant
Notes on the January 15 or July 15, as the case may be, immediately preceding
such Interest Payment Date (as reflected in the Register at the close of
business on the Regular Record Date), in each case, even if the Note is canceled
on registration of transfer or registration of exchange after such record date.
The Company shall make payments of principal on the Notes to Holders that
surrender Notes to the Paying Agent.
If a Holder has given wire transfer instructions to the Paying Agent
at least 15 days prior to any payment, the Company shall make all principal,
premium and interest payments on the Notes owned by such Holder in accordance
with those instructions. All other payments on the Notes shall be made by check
mailed to the Holders at their address set forth in the register of Holders, or
in the case of the final payment of principal and interest, if any, on any Note,
upon presentation and surrender of such Note at the office of the Paying Agent.
All payments on the Notes will be made in Dollars.
3. PAYING AGENT AND REGISTRAR.
Initially, the Company has appointed the corporate trust office of the
Trustee located at the address set forth in Section 13.02 of the Indenture as
Paying Agent.
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4. INDENTURE; LIMITATIONS.
The Company issued the Notes under an Indenture dated as of August 8,
2002 (the "INDENTURE"), among the Company, the Guarantors named therein and BNY
Midwest Trust Company, as trustee (the "TRUSTEE"). Capitalized terms herein are
used as defined in the Indenture unless otherwise indicated. This Note is one of
a duly authorized issue of Notes of the Company designated as its 10 1/2 %
Senior Subordinated Notes due 2012 (the "UNRESTRICTED NOTES"). The Unrestricted
Notes are initially being issued in the aggregate principal amount of
$_________. The Company shall be entitled to issue Additional Notes pursuant to
Section 2.14 of the Indenture (the "ADDITIONAL NOTES"). The Notes include the
Initial Notes and the Unrestricted Notes. The Initial Notes, the Additional
Notes and the Unrestricted Notes are treated as a single class of securities
under the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control. This is one of the Notes referred to in the Indenture.
The Notes are unsecured.
5. REDEMPTION.
OPTIONAL REDEMPTION. Except as described below, the Notes are not
redeemable before August 1, 2007. Thereafter, the Company may redeem the Notes
at its option, in whole or in part, upon not less than 30 nor more than 60 days'
notice to the Holders, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month
period commencing on August 1 of the years set forth below:
Year Percentage
---- ----------
2007................................................. 105.250%
2008................................................. 103.500%
2009................................................. 101.750%
2010 and thereafter.................................. 100.000%
In addition, the Company must pay accrued and unpaid interest on the
Notes redeemed.
OPTIONAL REDEMPTION UPON PUBLIC EQUITY OFFERINGS. At any time, or from
time to time, on or prior to August 1, 2005, the Company may, at its option, use
the net cash proceeds of one or more Public Equity Offerings (as defined below)
to redeem up to 35% of the principal amount of the Notes (including any
Additional Notes) outstanding under the Indenture at a redemption price of
110.500% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; PROVIDED that:
(1) at least 65% of the principal amount of Notes (including any
Additional Notes) outstanding under the Indenture remains outstanding
immediately after any such redemption; and
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(2) the Company makes such redemption not more than 90 days after
the consummation of any such Public Equity Offering.
"PUBLIC EQUITY OFFERING" means an underwritten public offering of
Qualified Capital Stock of the Company pursuant to a registration statement
filed with the Commission in accordance with the Securities Act.
In the event that the Company chooses to redeem less than all of the
Notes, selection of the Notes for redemption will be made by the Trustee either:
(1) in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed; or,
(2) on a PRO RATA basis, by lot or by such method as the Trustee
shall deem fair and appropriate.
No Notes of a principal amount of $1,000 or less shall be redeemed in
part. If a partial redemption is made with the proceeds of a Public Equity
Offering, the Trustee will select the Notes only on a PRO RATA basis or on as
nearly a PRO RATA basis as is practicable (subject to the Depositary's
procedures, if any).
Notice of any optional redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each Holder of Notes to be
redeemed at its last address as it appears in the Register. On and after the
Redemption Date, interest ceases to accrue on Notes or portions of Notes called
for redemption so long as the Company has deposited with the Paying Agent funds
in satisfaction of the Redemption Price pursuant to the terms of the Indenture,
unless the Company defaults in the payment of the Redemption Price. The Trustee
may select for redemption portions of the principal amount of the Notes that
have denominations equal to $1,000 integral multiples thereof in accordance with
Section 3.03 of the Indenture.
6. REPURCHASE UPON CHANGE IN CONTROL.
Upon the occurrence of a Change of Control, each Holder shall have the
right, subject to the terms and conditions set forth in the Indenture, to
require the Company to repurchase its Notes in cash pursuant to the offer
described in the Indenture at a purchase price equal to 101% of the principal
amount thereof, plus accrued and unpaid interest to the date of purchase (the
"CHANGE OF CONTROL PAYMENT").
A notice of such Change of Control will be mailed within 30 days after
any Change of Control occurs to each Holder at its last address as it appears in
the Register and to the Trustee. The notice to the Holders shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to
Section 4.11 of the Indenture and that all Notes tendered will be accepted
for payment;
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(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than the Change of Control
Payment Date);
(3) that any Note not tendered will continue to accrue interest if
interest is then accruing;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third business day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than 5:00 p.m., New York City time, on the
second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Notes the Holder delivered for
purchase and a statement that such Xxxxxx is withdrawing his election to
have such Note purchased; and
(7) the circumstances and relevant facts regarding such Change of
Control.
7. SUBORDINATION.
The Notes are subordinated to Senior Debt of the Company. To the
extent provided in the Indenture, Senior Debt of the Company must be paid before
the Notes may be paid. The Company agrees, and each Holder by accepting a Note
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give it effect and appoints the Trustee as
attorney-in-fact for such purpose.
8. DENOMINATIONS; TRANSFER; EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 principal amount and multiples of $1,000 in excess thereof. A Holder may
register the transfer or exchange of Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
9. PERSONS DEEMED OWNERS.
A Holder shall be treated as the owner of a Note for all purposes.
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10. UNCLAIMED MONEY.
If money deposited with the Trustee or any Paying Agent for the
payment of principal, premium (if any) or interest remains unclaimed for two
years, the Trustee and each such Paying Agent shall pay such money back to the
Company upon written request of the Company. Following such repayment to the
Company, Holders of the Notes entitled to such payment must look to the Company
for such payment unless applicable abandoned property law designates another
Person and all liability of the Trustee and such Paying Agent shall cease. Other
than as set forth in this paragraph, the Indenture does not provide for any
prescription period for the payment of principal, premium (if any) and interest
on the Notes.
11. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of and accrued
interest on the Notes to redemption or maturity, the Company and the Guarantors
will be discharged from the Indenture, the Notes and the Guarantees except in
certain circumstances set forth in the Indenture.
12. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
The Company and each Guarantor may be discharged from their
obligations under the Indenture, the Notes and the Guarantees except for certain
provisions thereof, and the Company may be discharged from its obligations to
comply with certain covenants contained therein, in each case upon satisfaction
of certain conditions specified in the Indenture.
13. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture, the Notes and the
Guarantees may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of at least a majority in principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture, the Notes and the Guarantees to, among
other things, cure any ambiguity, defect or inconsistency. Certain modifications
will require the consent of each Holder affected thereby.
14. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries, among other things, to incur additional
Indebtedness, make Restricted Payments, use the proceeds from Asset Sales,
engage in transactions with Affiliates and, in the case of the Company and the
Guarantors, to merge, consolidate or transfer substantially all of its assets.
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15. SUCCESSOR PERSONS.
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
16. DEFAULTS AND REMEDIES.
If an Event of Default (other than an Event of Default specified in
clause (a)(6) or (a)(7) of Section 6.01 of the Indenture that occurs with
respect to the Company) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding under the Indenture by notice to the Company and the
Trustee, may declare the principal of, premium, if any, and accrued interest, if
any, on all Notes to be due and payable. If an Event of Default specified in
clause (a)(6) or (a)(7) of Section 6.01 occurs and is continuing with respect to
the Company, such amount with respect to all the Notes shall, IPSO FACTO, become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Holders may not enforce the Indenture, the
Notes or the Guarantees except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture, the Notes
or the Guarantees. Subject to certain limitations, Holders of at least a
majority in principal amount of the Notes then outstanding may direct the
Trustee in its exercise of any trust or power.
17. TRUSTEE DEALINGS WITH COMPANY.
Subject to the Trust Indenture Act, the Trustee under the Indenture,
in its individual or any other capacity, may make loans to, accept deposits from
and perform services for the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS.
No recourse for the payment of the principal of, premium, if any, or
interest on any of the Notes or the Guarantees, or for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company contained in the Indenture, in any of the
Notes or the Guarantees, or because of the creation of any Indebtedness
represented thereby, shall be had against any incorporator or against any past,
present or future partner, shareholder, other equityholder, officer, director,
employee, management board member, supervisory board member or controlling
person, as such, of the Company, the Guarantors or of any successor Person,
either directly or through the Company or any successor Person, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise.
19. AUTHENTICATION.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
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20. 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).
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to The Manitowoc
Company, Inc., 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
21. CHOICE OF LAW.
The laws of the State of New York shall govern the Indenture and this
Note without regard to conflicts of laws principles thereof.
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ASSIGNMENT FORM
I or we assign and transfer this Note to
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(Print or type name, address and zip code of assignee or transferee)
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(Insert Company Registration, Social Security or other identifying number of
assignee or transferee)
and irrevocably appoint ___________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
-------------------- ---------------------------------
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:
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Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 4.10 or Section 4.11 of the Indenture, check the box: [ ]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.10 or Section 4.11 of the Indenture, state the amount (in
principal amount): $_________.
Date:
--------------------
Your Signature:
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(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
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SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
OF INDEBTEDNESS EVIDENCED BY THIS NOTE
The initial principal amount of indebtedness evidenced by this Note
shall be $___________. The following decreases/increases in the principal amount
of indebtedness evidenced by this Note have been made:
Total Principal
Amount of
Decrease in Increase in Indebtedness
Principal Amount Principal Amount Evidenced Notation Made
Date of of Indebtedness of Indebtedness Following Such by or on Behalf of
Decrease/Increase Evidenced Evidenced Decrease/Increase Trustee
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