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EXHIBIT 4.4
GENERAC PORTABLE PRODUCTS, LLC
GPPW, INC.
11 1/4% Senior Subordinated Note
due 2006, Series B
CUSIP No.:▇▇▇▇▇▇▇▇▇
No. [ ] $[ ]
GENERAC PORTABLE PRODUCTS, LLC, a limited liability company
(the "Company", which term includes any successor), and GPPW, INC., a Wisconsin
corporation ("GPPW", which term includes any successor and, together with the
Company, the "Issuers"), for value received jointly and severally promise to pay
to [ ] or registered assigns, the principal sum of [ ] Dollars, on July 1, 2006.
Interest Payment Dates: January 1 and July 1, commencing on
January 1, 1999.
Interest Record Dates: December 15 and June 15.
Reference is made to the further provisions of this Note
contained herein and the Indenture (as defined), which will for all purposes
have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, each of the Issuers has caused this Note
to be signed manually or by facsimile by its duly authorized officers.
GENERAC PORTABLE PRODUCTS, LLC
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
GPPW, INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
Dated: [ ]
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This is one of the 11 1/4% Senior Subordinated Notes due 2006, Series B,
described in the within-mentioned Indenture.
Dated: [ ]
MARINE MIDLAND BANK,
as Trustee
By: ________________________________
Authorized Signatory
or
MARINE MIDLAND BANK,
as Trustee
By Bankers Trust Company,
as Authenticating Agent
By: _______________________________
Authorized Signatory
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(REVERSE OF NOTE)
GENERAC PORTABLE PRODUCTS, LLC
GPPW, INC.
11 1/4% Senior Subordinated Note
due 2006, Series B
1. Interest.
The Issuers jointly and severally promise to pay interest on
the principal amount of this Note at the rate per annum shown above. Cash
interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from July 9, 1998. The Issuers
will pay interest semi-annually in arrears on each Interest Payment Date,
commencing January 1, 1999. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
In addition, the Issuers shall pay interest on overdue
principal and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful from time to time on demand, in
each case at the rate borne by this Note.
The Notes are not entitled to the benefit of any mandatory
sinking fund.
2. Method of Payment.
The Issuers shall pay interest on the Notes (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Notes are cancelled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Issuers shall pay principal and
interest in United States Legal Tender (as defined in the Indenture referred to
below). However, the Issuers may pay principal and interest by wire transfer of
Federal funds (provided that the Paying Agent shall have received wire
instructions on or prior to the relevant Interest Record Date), or interest by
check payable in such United States Legal Tender. The Issuers may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar.
Initially, Bankers Trust Company will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent or Registrar without notice
to the Holders. The Issuers may, subject to certain exceptions, act as
Registrar.
4. Indenture.
The Issuers issued the Notes under an Indenture, dated as of
July 1, 1998 (the "Indenture"), by and among the Issuers and Marine Midland
Bank, as Trustee (the "Trustee"). Capitalized terms herein are used as defined
in the Indenture unless otherwise defined herein. This Note is one of a duly
authorized issue of Notes of the Issuers designated as their 11 1/4% Senior
Subordinated Notes due 2006, Series B, under the Indenture.
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The aggregate principal amount of Notes which may be issued under the Indenture
is limited (except as provided in the Indenture) to $160,000,000. 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 of 1939, as amended (the
"TIA"), as in effect on the date of the Indenture (except as otherwise indicated
in the Indenture) until such time as the Indenture is qualified under the TIA,
and thereafter as in effect on the date on which the Indenture is qualified
under the TIA. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and holders of Notes are referred to the Indenture
and the TIA for a statement of them.
5. Subordination.
The Notes are unsecured obligations of the Issuers and are
subordinated in right of payment to all Senior Debt of the Issuers to the extent
and in the manner provided in the Indenture. Each Holder of a Note, by accepting
a Note, agrees to such subordination, authorizes the Trustee to give effect to
such subordination and appoints the Trustee as attorney-in-fact for such
purpose. The Notes will rank pari passu in right of payment with any future
senior subordinated indebtedness of the Issuers and will rank senior in right of
payment to any other subordinated obligations of the Issuers.
6. Optional Redemption.
The Notes will be redeemable, at the Issuers' option, in whole
at any time or in part from time to time, on and after July 1, 2002, upon not
less than 30 nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on July 1 of the year set forth below, plus,
in each case, accrued and unpaid interest thereon, if any, to the date of
redemption:
Year Percentage
---- ----------
2002....................................................................... 107.625%
2003....................................................................... 104.750%
2004....................................................................... 102.875%
2005 and thereafter........................................................ 100.000%
7. Optional Redemption upon Public Equity Offerings.
At any time, or from time to time, on or prior to July 1,
2001, the Issuers may, at their option, use the net cash proceeds of one or more
Public Equity Offerings (as defined below) to redeem the Notes at a redemption
price equal to 111.25% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided that at least 65%
of the principal amount of Notes originally issued remains outstanding
immediately after any such redemption. In order to effect the foregoing
redemption with the proceeds of any Public Equity Offering, the Issuers shall
make such redemption not more than 120 days after the consummation of any such
Public Equity Offering.
As used in the preceding paragraph, "Public Equity Offering"
means an underwritten public offering of Qualified Capital Stock of Holdings or
the Company pursuant to a registration statement filed with the Commission in
accordance with the Securities Act, other than an offering pursuant to Form S-8
(or any successor thereto); provided that, in the event of a Public Equity
Offering by Holdings, Holdings contributes to the capital of the Company the
portion of the net cash proceeds of such Public Equity Offering necessary to pay
the aggregate redemption price (plus accrued interest to the redemption date) of
the Notes to be redeemed pursuant to the preceding paragraph.
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8. Selection and Notice of Redemption.
In the event that less than all of the Notes are to be
redeemed at any time, selection of such Notes for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which such Notes are listed or, if such Notes are not then
listed on a national securities exchange, on a pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate; provided, however, that
no Notes of a principal amount of $1,000 or less shall be redeemed in part;
provided, further, that if a partial redemption is made with the proceeds of a
Public Equity Offering, selection of the Notes or portions thereof for
redemption shall be made by the Trustee only on a pro rata basis or on as nearly
a pro rata basis as is practicable (subject to DTC procedures), unless such
method is otherwise prohibited. Notice of redemption shall be mailed by
first-class mail at least 30 but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at its registered address. If any
Note is to be redeemed in part only, the notice of redemption that relates to
such Note shall state the portion of the principal amount thereof to be
redeemed. A new Note in a principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Note. 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.
9. Change of Control Offer.
Following the occurrence of a Change of Control, the Issuers
shall, within 30 days, make a Change of Control Offer for all Notes then
outstanding at a purchase price in cash equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the Change
of Control Payment Date (subject to the right of Holders of record on the
relevant Interest Record Date to receive interest due on the relevant Interest
Payment Date).
10. Limitation on Disposition of Assets.
The Issuers are, subject to certain conditions, obligated to
make a Net Proceeds Offer for Notes at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Net Proceeds Offer Payment Date (subject to the right of Holders of record
on the Interest Relevant Record Date to receive interest due on the relevant
Interest Payment Date) with the excess proceeds of certain Asset Sales.
11. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of 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 certain transfer taxes or similar
governmental charges payable in connection therewith as permitted by the
Indenture. The Registrar need not register the transfer of or exchange of any
Notes or portions thereof selected for redemption, except the unredeemed portion
of any Note being redeemed in part.
12. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner
of it for all purposes.
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13. Unclaimed Funds.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the funds
to the Issuers at their written request. After that, all liability of the
Trustee and such Paying Agent with respect to such funds shall cease.
14. Legal Defeasance and Covenant Defeasance.
The Issuers may be discharged from their obligations under the
Indenture and the Notes, except for certain provisions thereof, and may be
discharged from obligations to comply with certain covenants contained in the
Indenture and the Notes, in each case upon satisfaction of certain conditions
specified in the Indenture.
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Notes may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture and the Notes
to, among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes or comply
with any requirements of the SEC in connection with the qualification of the
Indenture under the TIA, or make any other change that does not materially
adversely affect the rights of any Holder of a Note.
16. Restrictive Covenants.
The Indenture contains certain covenants that, among other
things, limit the ability of the Company and the Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to sell assets, to
permit restrictions on dividends and other payments by Restricted Subsidiaries
to the Company, to consolidate, merge or sell all or substantially all of its
assets or to engage in transactions with affiliates or certain other related
persons. The limitations are subject to a number of important qualifications and
exceptions. The Issuers must report quarterly to the Trustee on compliance with
such limitations.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of Notes then
outstanding may declare all the Notes to be due and payable immediately in the
manner and with the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee is not obligated to enforce the Indenture or the Notes unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Notes then outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Notes notice of
certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.
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18. Trustee Dealings with Company.
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 the Issuers or their respective Affiliates as if it were not the Trustee.
19. No Recourse Against Others.
No director, officer, employee, stockholder or member of the
Issuers, as such, shall have any liability for any obligation of the Issuers
under the Notes or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Note by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
20. Authentication.
This Note shall not be valid until the Trustee or
Authenticating Agent signs the certificate of authentication on this Note.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of
a Note 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).
22. 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 Notes as a convenience to the Holders of the Notes.
No representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. Governing Law.
The Indenture and the Notes will be governed by, and construed
in accordance with, the laws of the State of New York but without giving effect
of applicable principles of conflicts of law to the extent that the application
of the law of another jurisdiction would be required thereby.
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ASSIGNMENT FORM
I or we assign and transfer this Note to
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
_______________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint _______________________________________________________
agent to transfer this Note on the books of the Issuers. The agent may
substitute another to act for him.
Dated:___________________ Signed: ______________________________
(Signed exactly as name appears
on the other side of this Note)
Signature Guarantee:
_______________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Registrar)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Issuers pursuant to Section 4.05 or Section 4.14 of the Indenture, check the
appropriate box:
Section 4.05 [ ]
Section 4.14 [ ]
If you want to elect to have only part of this Note purchased
by the Issuers pursuant to Section 4.05 or Section 4.14 of the Indenture, state
the amount: $_____________
Dated:___________________ Your Signature: _______________________
(Signed exactly as name appears
on the other side of this Note)
Signature Guarantee:
_____________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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[FORM OF GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor (capitalized terms used herein have the meanings given such
terms in the Indenture referred to in the Note upon which this notation is
endorsed) hereby unconditionally guarantees on a senior subordinated basis (such
guaranty being referred to herein as the "Guarantee") the due and punctual
payment of the principal of, and interest on the Notes, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest on the Notes, and the due and punctual
performance of all other obligations of the Issuers to the Holders or the
Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.
The obligations of the Guarantor to the Holders of Notes and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth, and are
expressly subordinated and subject in right of payment to the prior payment in
full of all Senior Debt of the Guarantor, to the extent and in the manner
provided in Article Eleven and Article Twelve of the Indenture.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication of the Notes upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture or the
Authenticating Agent by the manual signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflicts of law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
[ ]
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By:
---------------------------
Name:
Title: