Exhibit 4.3
FORM OF EXCHANGE NOTE
[Include the following legend for Global Notes only:
"THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF."]
FORM OF FACE OF NOTE
No. [ ] Principal Amount $[ ]
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[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto]
CUSIP NO.
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[If the Note is a Regulation S Global Note, delete the reference to CUSIP No.
and replace it with: ISIN NO. ]
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JLG Industries, Inc., a Pennsylvania corporation, promises to pay
to [___________], or registered assigns, the principal sum of
[__________________] Dollars [If the Note is a Global Note, add the following,
as revised by the Schedule of Increases and Decreases in Global Note attached
hereto], on June 15, 2012.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Additional provisions of this Note are set forth on the other side of this Note.
JLG INDUSTRIES, INC.
By:
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Name:
Title:
By:
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Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By:
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Authorized Signatory Date:
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FORM OF REVERSE SIDE OF NOTE
8 3/8% SENIOR SUBORDINATED NOTES DUE 2012
1. Interest
JLG Industries, Inc., a Pennsylvania corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, the "Company"), promises to pay interest on the principal amount of
this Note at the rate per annum shown above.
The Company will pay interest semiannually in arrears on each
Interest Payment Date of each year commencing December 15, 2002. Interest on the
Notes will accrue from the most recent date to which interest has been paid on
the Notes or, if no interest has been paid, from and including the Issue Date.
The Company shall pay interest on overdue principal (plus interest on such
interest to the extent lawful), at the rate borne by the Notes to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and, to the
extent such payments are lawful, interest on overdue installments of interest
("Defaulted Interest") without regard to any applicable grace periods at the
rate of 2.0% per annum in excess of the rate shown on this Note, as provided in
the Indenture.
2. Method of Payment
Prior to 10:00 a.m. New York City time on the date on which any
principal of or interest on any Note is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal and/or interest. The Company will pay interest (except Defaulted
Interest) to the Persons who are registered Holders of Notes at the close of
business on the Record Date preceding the Interest Payment Date even if Notes
are canceled, repurchased or redeemed after the Record Date and on or before the
relevant Interest Payment Date. Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
U.S. Legal Tender.
Payments in respect of Notes represented by a Global Note
(including principal and interest) will be made by the transfer of immediately
available funds to the accounts specified by DTC. The Company will make all
payments in respect of a Certificated Note (including principal and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Notes may also be made, in the case of a Holder of
at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 15 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, The Bank of New York (the "Trustee"), will act as
Trustee, Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-Registrar without notice to any Holder. The
Company or any Note Guarantor may act as Paying Agent, Registrar or
co-Registrar.
4. Indenture; Guarantees
The Company issued the Notes under an Indenture, dated as of June
17, 2002 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), between the Company, the Note
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the TIA.
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Notes are subject to all such terms, and Holders
are referred to the Indenture and the TIA for a statement of those terms. Each
Holder by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture, as amended or supplemented from time to time.
The Notes are general unsecured obligations of the Company
limited to $275,000,000 aggregate principal amount, of which $175,000,000 in
aggregate principal amount will be initially issued on the Issue Date. Subject
to the conditions set forth in the Indenture and without the consent of the
Holders, the Company may issue Additional Notes of up to an additional
$100,000,000 aggregate principal amount of 8 3/8% Senior Subordinated Notes Due
2012. All Notes will be treated as a single class of securities under the
Indenture.
The Indenture imposes certain limitations on, among other things,
the ability of the Company and its Restricted Subsidiaries to: Incur
Indebtedness, make Restricted Payments, incur Liens, make Asset Sales, enter
into transactions with Affiliates, or consolidate or merge or transfer or convey
all or substantially all of the Company's and its Restricted Subsidiaries'
assets.
To guarantee the due and punctual payment of the principal of,
premium and interest on the Notes and all other amounts payable by the Company
under the Indenture and the Notes when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Notes and the Indenture, Access Financial Solutions, Inc., Fulton International,
Inc., JLG Equipment Services, Inc., JLG Manufacturing, LLC, Gradall Industries,
Inc., and The Gradall Company have unconditionally guaranteed (and each future
Material Domestic Subsidiary will unconditionally guarantee), jointly and
severally, such obligations pursuant to the terms of the Indenture. Each Note
Guarantee will be subject to release as provided in the Indenture.
5. Redemption
Optional Redemption. Except as stated below, the Company may not
redeem the Notes prior to June 15, 2007. The Company may redeem the Notes, at
its option, in whole at any time or in part from time to time, on and after June
15, 2007, at the following redemption prices, expressed as percentages of the
principal amount thereof, plus accrued and unpaid interest to, but
excluding the date of redemption, if redeemed during the twelve-month period
commencing on June 15 of any year set forth below:
YEAR PERCENTAGE
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2007 104.188%
2008 102.792%
2009 101.396%
2010 100.000%
and 2011
Optional Redemption upon Equity Offerings. At any time, or from
time to time, on or prior to June 15, 2005, the Company may, at its option, use
the net cash proceeds of one or more Equity Offerings to redeem in the aggregate
up to 35% of the aggregate principal amount of the Notes issued on or prior to
such date at a redemption price equal to 108.375% of the principal amount
thereof, plus accrued and unpaid interest thereon to, but excluding, the date of
redemption; provided, that:
(1) after giving effect to any such redemption at least
65% of the aggregate principal amount of the Notes issued on or prior to
such date remains outstanding; and
(2) the Company shall make such redemption not more than
60 days after the consummation of such Equity Offering.
"Equity Offering" means an offering of Qualified Capital Stock of
the Company (other than pursuant to a registration statement filed on Form S-4
or S-8 or any issuance pursuant to employee benefit or compensation plans or
programs).
Partial Redemption. In the case of any partial redemption,
selection of the Notes for redemption will be made in accordance with Article V
of the Indenture. On and after the redemption date, interest will cease to
accrue on Notes or portions thereof called for redemption as long as the Company
has deposited with the Paying Agent funds in satisfaction of the applicable
redemption price pursuant to the Indenture.
6. Repurchase Provisions
Change Of Control Offer. Upon the occurrence of a Change of
Control, each Holder of Notes will have the right to require that the Company
purchase all or a portion (in integral multiples of $1,000) of the Holder's
Notes at a purchase price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest through the date of purchase. Within 20 days
following the date upon which the Change of Control occurred, the Company must
make a Change of Control Offer pursuant to a Change of Control Offer Notice. As
more fully described in the Indenture, the Change of Control Offer Notice shall
state, among other things, the Change of Control Payment Date, which must be a
Business Day no earlier than 30 calendar days nor later than 60 calendar days
from the date the notice is mailed, other than as may be required by law.
Asset Sale Offer. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to make Asset Sales.
In the event the proceeds from a permitted Asset Sale exceed certain amounts and
are not applied as specified in the Indenture, the Company will be required to
make an Asset Sale Offer to purchase to the extent of such remaining proceeds
each Holder's Notes, and at the Company's option, on a pro rata basis other
Senior Subordinated Indebtedness with similar provisions requiring the Company
to offer to purchase the Senior Subordinated Indebtedness with the proceeds of
Asset Sales, at 100% of the principal amount thereof, plus accrued interest (if
any) to the Asset Sale Offer Payment Date, as more fully set forth in the
Indenture.
7. Subordination
This Note and the Note Guarantees are subordinated in right of
payment, as set forth in the Indenture, to the prior payment in full in cash or
Cash Equivalents of all existing and future Senior Indebtedness of the Company
or the relevant Note Guarantor, as the case may be. This Note and the Note
Guarantees in all respects rank pari passu with, or senior to, all other
Indebtedness of the Company or the relevant Note Guarantor, as the case may be.
By accepting a Note, each Holder agrees to the subordination provisions set
forth in the Indenture, authorizes the Trustee to acknowledge such subordination
provisions and give them effect and appoints the Trustee as attorney-in-fact for
such purpose.
8. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons, and only
in denominations of principal amount of $1,000 and any integral multiple
thereof. A Holder may transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange (i) any Notes selected for redemption (except, in
the case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) for a period beginning 15 days before the mailing of a notice of Notes
to be redeemed and ending on the date of such mailing or (ii) any Notes for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
9. Persons Deemed Owners
The registered holder of this Note may be treated as the owner of
it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
11. Discharge Prior to Redemption or Maturity
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Company deposits with the Trustee U.S. Legal Tender or
U.S. Government Obligations for the payment of principal of and interest on the
Notes to redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended or supplemented with the written consent
of the Holders of at least a majority in principal amount of the then
Outstanding Notes and (ii) any default (other than with respect to nonpayment or
in respect of a provision that cannot be amended or supplemented without the
written consent of each Holder affected) or noncompliance with any provision may
be waived with the written consent of the Holders of a majority in aggregate
principal amount of the then Outstanding Notes. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, omission, defect or inconsistency, or to comply with
Article IV of the Indenture, or to provide for uncertificated Notes in addition
to or in place of certificated Notes, or to add guarantees with respect to the
Notes or to secure the Notes, or to add additional covenants or surrender rights
and powers conferred on the Company, or to comply with any request of the SEC in
connection with qualifying the Indenture under the TIA, or to make any change
that does not adversely affect the rights of any Holder, or to provide for the
issuance of Exchange Notes or Additional Notes.
13. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the Notes may declare all the
Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes being due and
payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the
Outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
14. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
15. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or
controlling person, as such, of the Company or any Note Guarantor shall not have
any liability for any obligations of the Company under the Notes, the Indenture
or any Note Guarantee or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
16. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
17. 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
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
[18. ISIN Numbers
The Company has caused ISIN numbers to be printed on the Notes
and has directed the Trustee to use ISIN numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.]
19. Governing Law
This Note shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Note in larger type. Requests may be made to:
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, PA 17233-9533
Attention: Corporate Secretary
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. Number)
and irrevocably appoint _________________ agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
Date: Your Signature:
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Signature Guarantee:
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(Signature must be guaranteed)
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Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Exchange Act Rule 17Ad-15.
[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Date of Amount of decrease Amount of Principal Amount Signature of
Exchange in Principal increase in of this Global authorized
Amount of this Principal Amount Note following signatory of
Global Note of this Global such decrease or Trustee or Note
Note increase Custodian
]
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 3.8 or Section 3.11 of the Indenture, check either box:
[ ] [ ]
SECTION 3.8 SECTION 3.11
If you want to elect to have only part of this Note purchased by
the Company pursuant to Section 3.8 or Section 3.11 of the Indenture, state the
principal amount (which must be an integral multiple of $1,000) that you want to
have purchased by the Company: $
Date: Your Signature
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(Sign exactly as your name appears on the
other side of the Note)
Signature Guarantee:
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(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
Exchange Act Rule 17Ad-15.