Exhibit 10.36


 


EXCHANGE AGREEMENT


 


This EXCHANGE AGREEMENT is made as of January 11, 2008 (the “Agreement”),
by and among CCMP Capital Investors II, L.P. (“CCMP”), CCMP Capital
Investors (Cayman) II, L.P. (“Cayman”, and together with CCMP, the “Investors”)
and GPS CCMP Acquisition Corp., a Delaware corporation (the “Company”).


 


RECITALS


 


WHEREAS, Generac Acquisition Corp., a wholly-owned
subsidiary of the Company, Generac Power Systems, Inc. (the “Borrower”),
JPMorgan Chase Bank, N.A., as administrative agent, J.P. Morgan Securities Inc.,
as syndication agent, Barclays Bank PLC, as documentation agent, Wilmington
Trust Company, as collateral agent, Goldman Sachs Credit Partners L.P., and J.P.
Morgan Securities Inc., as joint lead arrangers, and the lenders party thereto
(the “Lenders”), are each a party to that certain Credit Agreement, dated
as of November 10, 2006 (the “Second Lien Credit Agreement”), pursuant
to which the Lenders made certain term loans to the Borrower upon the terms and
conditions set forth therein (such term loans, the “Second Lien Term Loans”);


 


WHEREAS, the Borrower is an indirect, wholly-owned
subsidiary of the Company;


 


WHEREAS, as of January 11, 2008, the Investors and
their affiliates own, in the aggregate, 66,875 shares of the Company’s Class B
Voting Common Stock, par value $0.01 per share (the “Class B Common
Stock”);


 


WHEREAS, the Investors have purchased Second Lien Term Loans
in an aggregate principal amount of $19,000,000 (the “Purchased Loans”) and,
as a result thereof, have become Lenders under the Second Lien Credit
Agreement;


 


WHEREAS, the Investors desire to transfer such Purchased
Loans to the Company (the “Exchange”) in exchange for that number of
shares of Class B Common Stock (the “Shares”), as set forth
opposite each such Investor’s name on Exhibit A hereto, which
Shares shall have a fair market value of $10,000.00 per Share and, in the
aggregate, shall have a value equivalent to the aggregate principal amount of
the Purchased Loans;


 


NOW, THEREFORE, in consideration of the foregoing premises, the
parties hereto hereby agree as follows:


 


1.              Exchange.
The parties hereby agree that effective immediately upon the execution and
delivery of this Agreement, each Investor is transferring to the Company, and
the Company is accepting and receiving, the Purchased Loans in exchange for the
number of Shares set forth opposite such Investor’s name on Exhibit A
hereto. The parties further agree that upon the Exchange and the delivery of
the Shares in exchange therefor, (i) the Investors and the Company will
execute and deliver the Assignment and


 

















 


Acceptance
Agreement required to be executed and delivered under the Second Lien Credit
Agreement in connection with the Exchange, (ii) neither Investor shall
have any further obligations in respect of any of the Purchased Loans, and (iii) the
Shares, when issued, shall be fully paid and non-assessable.


 


2.            Investor Representation and Warranties. In connection
with the consummation of the transactions contemplated hereby, each Investor
represents and warrants to the Company as follows:


 


(a)           Authority.
Such Investor has full power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby. Such Investor has taken all
action required by law or otherwise to authorize the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby, and
this Agreement is a valid and binding agreement of such Investor enforceable in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general principles of equity.


 


(b)           Accredited
Investor. Such Investor is an “Accredited Investor” as such term is defined
in Regulation D under the Securities Act of 1933, as amended, and has business
or financial experience from which it could be reasonably assumed that the
Investor has the capacity to protect its own interest in connection with the
transaction.


 


3.            Company Representation and Warranties. In connection
with the consummation of the transactions contemplated hereby, the Company
represents and warrants to each Investor as follows:


 


(a)           Authority.
The Company has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by the Company have been duly authorized by
all company action on the part of the Company. This Agreement has been duly
executed and delivered by the Company and, assuming the due execution and
delivery by the Investor, constitutes the valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.


 


(b)           Authorization
of Shares. The Shares have been duly authorized.


 


4.            Miscellaneous.


 


(a)           Counterparts. This Agreement
may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. This Agreement may be executed by facsimile signature and a
facsimile signature shall constitute an original for all purposes.


 


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(b)           Governing Law. This Agreement
shall be governed by the laws of the State of New York as to all matters, including
but not limited to matters of validity, construction, effect, performance and
remedies.


 


(c)           Entire Agreement. This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement sets forth the entire understanding of the parties, and
supersedes all prior agreements, arrangements and communications, whether oral
or written, with respect to the specific subject matter hereof. There are no
restrictions, promises, warranties or undertakings with respect to the subject
matter hereof other than those set forth or referred to herein. All exhibits
hereto shall be deemed a part of this Agreement.


 


(d)           No Waiver; Amendments in Writing.
No waiver of or consent to any departure from any provision of this Agreement
shall be effective unless signed in writing by the party entitled to the
benefit thereof, provided that notice of any such waiver shall be given to each
party hereto as set forth below. Except as otherwise provided herein, no
amendment, modification or termination of any provision of this Agreement shall
be effective unless signed in writing by or on behalf of the Company and each
Investor.


 


(e)           Binding Effect; Assignment. The
rights and obligations of each party under this Agreement may not be assigned
to any other person; provided that each Investor shall have the right to assign
its rights and obligations hereunder to any of its affiliated investment funds.
Except as expressly provided in this Agreement, this Agreement shall not be
construed so as to confer any right or benefit upon any person other than the
parties to this Agreement, and their respective successors and assigns. This
Agreement shall be binding upon the Company and each Investor and their
respective successors and assigns.


 


(f)            Recapitalization. The
Exchange is intended to qualify as a recapitalization within the meaning of Section 368(a)(1)(E) of
the Internal Revenue Code of 1986, as amended, and the parties hereto shall not
take any action inconsistent with the treatment of the Exchange as such.


 


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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the date first written above.


 




	
   

  	
  GPS CCMP ACQUISITION CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Aaron Jagdfeld

  
	
   

  	
   

  	
  Name:

  	
  Aaron
  Jagdfeld

  
	
   

  	
   

  	
  Title:

  	
  C.F.O

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CCMP
  CAPITAL INVESTORS (CAYMAN) II, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  CCMP
  Capital Associates, L.P.,

  
	
   

  	
   

  	
  its
  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  CCMP
  Capital Associates, GP, LLC, 

  
	
   

  	
   

  	
  its
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  [ILLEGIBLE]

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CCMP
  CAPITAL INVESTORS II,
  L.P.,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  CCMP
  Capital Associates, L.P.,

  
	
   

  	
   

  	
  its
  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  CCMP
  Capital Associates, GP, LLC,

  
	
   

  	
   

  	
   its General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  [ILLEGIBLE]

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  






 


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EXHIBIT A


 


Shares to be exchanged for
Purchased Loans


 


	
   

  	
   

  	
  Value of Purchased Loans

  	
   

  	
  Number of Shares

  	
   

  
	
  Investor

  	
   

  	
  Exchanged

  	
   

  	
  Received

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CCMP

  	
   

  	
  $

  	
  16,765,359.59

  	
   

  	
  1,676.5359590

  	
   

  
	
  Cayman

  	
   

  	
  $

  	
  2,234,640.41

  	
   

  	
  223.4640410

  	
   

  



 


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