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Exhibit 99.3
BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
_________ __, 1999
Bankers Trust Company
Corporate Trust and
Agency Group
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Market Services
Ladies and Gentlemen:
Generac Portable Products, LLC, a Delaware limited liability company
(the "COMPANY"), and GPPW, Inc., a Wisconsin corporation ("GPPW" and, together
with the Company, the "ISSUERS"), are offering to exchange (the "EXCHANGE
OFFER") their 11 1/4% Senior Subordinated Notes due 2006 (the "New Notes") for
an equal principal amount of their 11 1/4% Senior Subordinated Notes
due 2006 (the "OLD NOTES" and, together with the New Notes, the "NOTES"),
pursuant to a prospectus (the "PROSPECTUS") included in the Issuers'
Registration Statement on Form S-4 (File No. __________) as amended (the
"REGISTRATION STATEMENT"), filed with the Securities and Exchange Commission
(the "SEC") and attached hereto as Exhibit A. The Term "EXPIRATION DATE" shall
mean 5:00 p.m., New York City time, on _________ __, 1999, unless the Exchange
Offer is extended as provided in the Prospectus, in which case the term
"EXPIRATION DATE" shall mean the latest date and time to which the Exchange
Offer is extended. Upon execution of this Agreement, Bankers Trust Company will
act as the Exchange Agent for the Exchange Offer (the "EXCHANGE AGENT").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of letter of transmittal (the "LETTER OF
TRANSMITTAL"), the form of the notice of guaranteed delivery (the "NOTICE OF
GUARANTEED DELIVERY"), the form of letter to brokers and the form of letter to
clients (collectively, the "TENDER DOCUMENTS") to be used by Holders of Old
Notes in order to receive New Notes pursuant to the Exchange Offer are attached
hereto as Exhibit B.
The Issuers hereby appoint you to act as Exchange Agent in connection
with the Exchange Offer. In carrying out your duties as Exchange Agent, you are
to act in accordance with the following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to all of
the Holders and participants on the day that you are notified by the Company
that the Registration Statement has become effective under the Securities Act of
1933, as amended, or as soon as practicable thereafter, and to make subsequent
mailings thereof the date thereof and to any persons who become Holders prior to
the Expiration Date and to any persons as may from time to time be
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requested by the Company. All mailings pursuant to this Section 1 shall be by
first class mail, postage prepaid, unless otherwise specified by the Company.
You shall also accept and comply with telephone requests for information
relating to the Exchange Offer provided that such information shall relate only
to the procedures for tendering Old Notes in (or withdrawing tenders of Old
Notes from) the Exchange Offer. All other requests for information relating to
the Exchange Offer shall be directed to the Company, Attention: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇., President and Chief Executive Officer.
2. You are to examine Letters of Transmittal and the Old Notes and
other documents delivered or mailed to you, by or for the Holders, prior to the
Expiration Date, to ascertain whether (i) the Letters of Transmittal are
properly executed and completed in accordance with the instructions set forth
therein, (ii) the Old Notes are in proper form for transfer and (iii) all other
documents submitted to you are in proper form. In each case where a Letter of
Transmittal or other document has been improperly executed or completed or, for
any other reason, is not in proper form, or some other irregularity exists, you
are authorized to endeavor to take such action as you consider appropriate to
notify the tendering Holder of such irregularity and as to the appropriate means
of resolving the same. Determination of questions as to the proper completion or
execution of the Letters of Transmittal, or as to the proper form for transfer
of the Old Notes or as to any other irregularity in connection with the
submission of Letters of Transmittal and/or Old Notes and other documents in
connection with the Exchange Offer, shall be made by the officers of, or counsel
for, the Company at their written instructions or oral direction confirmed by
facsimile. Any determination made by the Company on such questions shall be
final and binding.
3. At the written request of the Company or its counsel, King &
Spalding, you shall notify tendering Holders of Old Notes in the event of any
termination, recision or modification of the Exchange Offer. In the event of any
such termination, recision or modification, you will return all tendered Old
Notes to the persons entitled thereto, at the request of the Company or its
counsel, King & Spalding, and at the expense of the Issuers.
4. Tender of the Old Notes may be made only as set forth in the Letter
of Transmittal. Notwithstanding the foregoing, tenders which the Company shall
approve in writing as having been properly delivered shall be considered to be
properly tendered. Letters of Transmittal and Notices of Guaranteed Delivery
shall be recorded by you as to the date and time of receipt and shall be
preserved and retained by you at the Issuers' expense for one year. New Notes
are to be issued in exchange for Old Notes pursuant to the Exchange Offer only
(i) against deposit with you prior to the Expiration Date or, in the case of a
tender in accordance with the guaranteed delivery procedures outlined in
Instruction __ of the Letter of Transmittal, within three New York Stock
Exchange trading days after the Expiration Date of the Exchange Offer, together
with executed Letters of Transmittal and other documents required by the
Exchange Offer or (ii) in the event that the Holder is a participant in The
Depository Trust Company ("DTC") system, by the utilization of DTC's Automated
Tender Offer Program ("ATOP") and any evidence required by the Exchange Offer.
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You are hereby directed to establish an account with respect to the
Notes at The Depositary Trust Company (the "BOOK ENTRY TRANSFER FACILITY")
within two days after the date hereof in accordance with SEC Regulation 240.17
Ad-14. Any financial institution that is a participant in the Book Entry
Transfer Facility system may, until the Expiration Date, make book-entry
delivery of the Notes by causing the Book Entry Facility to transfer such Notes
into your account in accordance with the procedure for such transfer established
by the Book Entry Transfer Facility. In every case, however, a Letter of
Transmittal (or a manually executed facsimile thereof), or an Agent's Message,
properly completed and duly executed, with any required signature guarantees and
any other required documents must be transmitted to and received by you prior to
the Expiration Date or the guaranteed delivery procedures described in the
Letter of Transmittal must be complied with.
5. Upon oral or written request of the Company (with written
confirmation of any such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing to ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇., President and Chief Executive Officer (telecopier number (▇▇▇) ▇▇▇-▇▇▇▇),
with a copy to King & Spalding, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (telecopier number
(▇▇▇) ▇▇▇-▇▇▇▇), or such other persons as the Company may reasonably request,
the aggregate number and principal amount of Old Notes tendered to you and the
number and principal amount of Old Notes properly tendered that day. In
addition, you will also inform the aforementioned persons, upon oral request
made from time to time (with written confirmation of such request thereafter)
prior to the Expiration Date, of such information as they or any of them may
reasonable request.
6. Upon the terms and subject to the conditions of the Exchange Offer,
delivery of New Notes will be made by you promptly after acceptance of the
tendered Old Notes. You will be hold all items which are deposited for tender
with you after 5:00 p.m. New York City time, on the Expiration Date pending
further instructions from an officer of the Company.
7. If any Holder shall report to you that his or her failure to
surrender Old Notes registered in his or her name is due to the loss or
destruction of a certificate or certificates, you shall request such Holder (i)
to furnish to you an affidavit of loss and, if required by the Company, a bond
of indemnity in an amount and evidenced by such certificate or certificates of a
surety, as may be satisfactory to you and the Company, and (ii) to execute and
deliver an agreement to indemnify the Company, the Trustee and you in such
form as is acceptable to you and the Company. The obligees to be named in each
such indemnity bond shall include the Company, the Trustee and you. You shall
report to the Company the names of all Holders who claim that their Old Notes
have been lost or destroyed and the principal amount of such Old Notes.
8. As soon as practicable after the Expiration Date, you shall mail or
deliver via the Book Entry Transfer Facility's applicable procedures, the New
Notes that such Holders may be entitled to receive and you shall arrange for
cancellation of the Old Notes submitted to you or returned by DTC in connection
with ATOP. Such Old Notes shall be forwarded to ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. for
cancellation and retirement as you are instructed by the Company (or a
representative designated by the Company) in writing.
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9. For your services as the Exchange Agent hereunder, the Company
shall pay you in accordance with the schedule of fees attached hereto as Exhibit
C. The Company also will reimburse you for your reasonable out-of-pocket
expenses (including, but not limited to, reasonable attorneys' fees not
previously paid to you as set forth in Exhibit C) in connection with your
services promptly after submission to the Company of itemized statements.
10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage or
utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or in the Exhibits attached hereto or as
may be subsequently requested in writing of you by the Company and
agreed to by you in writing with respect to the Exchange Offer;
(b) will be regarded as making no representations and having
no responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Notes deposited with you hereunder, any New
Notes, and Tender Documents or other documents prepared by the Issuers
in connection with the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability unless
you shall have been furnished with an indemnity reasonably satisfactory
to you;
(d) may rely on, and shall be fully protected and indemnified
as provided in Section 12 hereof in acting upon, the written or oral
instructions with respect to any matter relating to your acting as
Exchange Agent specifically covered by this Agreement or supplementing
or qualifying any such action of any officer or agent of such other
person or persons as may be designated or whom you reasonably believe
have been designated by the Company;
(e) may consult with counsel satisfactory to you, including
counsel for the Company, and the advice of such counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by you in good faith and in accordance with
such advice of such counsel;
(f) shall not at any time advise any person as to the wisdom
of the Exchange Offer or as to the market value or decline or
appreciation in market value of any Old Notes or New Notes; and
(g) shall not be liable for any action which you may do or
refrain from doing in connection with this Agreement except for your
gross negligence, willful misconduct or bad faith.
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12. The Issuers covenant and agree to indemnify and hold harmless
Bankers Trust Company and its officers, directors, employees, agents and
affiliates (collectively, the "INDEMNIFIED PARTIES" and each an "INDEMNIFIED
PARTY") against any loss, liability or reasonable expense of any nature
(including reasonable attorneys' and other fees and expenses) incurred in
connection with the administration of the duties of the Indemnified Parties
hereunder in accordance with this Agreement; provided, however, that no such
Indemnified Party shall be indemnified against any such loss, liability or
expense arising out of such Indemnified Party's gross negligence, willful
misconduct or bad faith. In no case shall the Issuers be liable under this
indemnity with respect to any claim against any Indemnified Party unless the
Issuers shall be notified by such Indemnified Party by letter, or by cable,
telex or telecopier confirmed by letter, of the written assertion of a claim
against such Indemnified Party, or of any action commenced against such
Indemnified Party, promptly after but in any event within 10 days of the date
such Indemnified Party shall have received any such written assertion of a claim
or shall have been served with a summons, or other legal process, giving
information as to the nature and basis of the claim; provided, however, that
failure to so notify the Issuers shall not relieve the Issuers of any liability
which they may otherwise have hereunder except such liability that is a direct
result of such Indemnified Party's failure to so notify the Issuers. The Issuers
shall be entitled to participate at their own expense in the defense of any such
claim or legal action and if the Issuers so elect or if the Indemnified Party in
such notice to the Issuers so directs, the Issuers shall assume the defense of
any suit brought to enforce any such claim. In the event the Issuers assume the
defense, the Indemnified Party shall be entitled to retain separate counsel,
provided that the Issuers shall be liable for the necessary and appropriate fees
and expenses thereafter incurred by such counsel only in the event of the need
to have separate representation because of a conflict of interest between such
Indemnified Party and the Issuers. You shall not enter into a settlement or
other compromise with respect to any indemnified loss, liability or expense
without the prior written consent of the Company, which shall not be
unreasonably withheld or delayed if not adverse to the Issuers' interests.
13. This Agreement and your appointment as the Exchange Agent shall be
construed and enforced in accordance with the laws of the State of New York and
shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating to
this Agreement, shall be heard and determined in such a New York State or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or other papers
in the manner provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
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15. This Agreement may not be modified, amended or supplemented without
an express written agreement executed by the parties hereto. Any inconsistency
between this Agreement and the Tender Documents, as they may from time to time
be supplemented or amended, shall be resolved in favor of the latter, except
with respect to the duties, liabilities and indemnification of you as Exchange
Agent.
16. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
17. In case any provision of this Agreement 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.
18. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 9 and 12 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Trustee any certificates for Old Notes or New Notes, funds or property then held
by you as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in writing and
shall be deemed to be duly given if delivered or mailed first class certified or
registered mail, postage prepaid, or telecopied as follows:
If to the Issuers: Generac Portable Products, LLC
▇.▇. ▇▇▇ ▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.,
President and Chief Executive Officer
and a copy to: King & Spalding
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.:
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Telephone: (212) 250-
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇/6961
and a copy to:
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purposes.
20. This Agreement and all of the obligations hereunder shall be
assumed by any and all successors and assigns of the Issuers.
If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy of
this Agreement to the Issuers.
Very truly yours,
GENERAC PORTABLE PRODUCTS, LLC
By: _______________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President and Chief Executive
Officer
GPPW, INC.
By: _______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
Agreed to this _____ day of ______, 1999
BANKERS TRUST COMPANY,
as Exchange Agent
By: _______________________________
Name:
Title:
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EXHIBIT C
BANKERS TRUST COMPANY
CORPORATE TRUST AND AGENCY GROUP
SCHEDULE OF FEES
I. Exchange Agent $5,000.00
Covers review of the Exchange Agent Agreement, the Letter of Transmittal
and other related documentation; establishment of accounts and systems link with
depositories; operational and administrative charges and time spent in
connection with the review, receipt and processing of Letters of Transmittal,
and Agent's Messages.
Note: The fees set forth in this schedule are subject to review of
documentation. The fees are also subject to change should circumstances warrant.
Out-of-pocket expenses and disbursements, including counsel fees, incurred in
the performance of our duties will be added to the billed fees. Fees for any
services not covered in this or related schedules will be based upon our
appraisal of the services rendered.
We may place orders to buy/sell financial instruments with outside
broker-dealers that we select, as well as with BT or its affiliates. These
transactions(for which normal and customary spreads or other compensation may be
earned by such broker-dealers, including BT or its affiliates, in addition to
the charges quoted above) will be executed on a riskless principal basis solely
for your account(s) and without recourse to us or our affiliates. If you choose
to invest in any mutual fund, BT and/or our affiliates may earn investment
management fees and other service fees/expenses associated with these funds as
disclosed in the mutual fund prospectus provided to you, in addition to the
charges quoted above. Likewise, BT has entered into agreements with certain
mutual funds or their agents to provide shareholder services to those funds. For
providing these shareholder services, BT is paid a fee by these mutual funds
that calculated on an annual basis does not exceed 25 basis points of the amount
of your investment in these mutual funds. In addition, if you choose to use
other services provided by BT or its affiliates, Corporate Trust or other BT
affiliates may be allocated a portion of the fees earned. We will provide
periodic account statements describing transactions executed for your
account(s). Trade confirms will be available upon your request at no additional
charge. If a transaction should fail to close for reasons beyond our control, we
reserve the right to charge our acceptance fee plus reimbursement for legal fees
incurred.
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Shares of mutual funds are not deposits or obligations of, or
guaranteed by, Bankers Trust Company or any of its affiliates and are not
insured by the Federal Deposit Insurance Corporation or any other agency of the
U.S. Government. Investments in the mutual funds involve the possible loss of
principal. Please read the prospectus carefully before investing.
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