EXHIBIT 99.3
SERIES B 11 3/4% SENIOR SUBORDINATED NOTES DUE 2005
THIRD SUPPLEMENT TO INDENTURE
DATED AS OF NOVEMBER 28, 2000
▇▇▇▇▇ NURSERIES, INC.,
AS ISSUER
▇▇▇▇▇ HORTICULTURE, INC.
AND
SUN GRO HORTICULTURE INC.,
AS GUARANTORS,
ENVIRO-SAFE LABORATORIES, INC.,
AS ADDITIONAL GUARANTOR
AND
THE BANK OF NEW YORK,
AS TRUSTEE
THIRD SUPPLEMENT TO INDENTURE
This Third Supplement to Indenture is dated as of November 28, 2000 by
and among ▇▇▇▇▇ Nurseries, Inc., a California corporation formerly known as
▇▇▇▇▇ Horticulture, Inc. (the "Company"), ▇▇▇▇▇ Horticulture, Inc., a Delaware
corporation and successor by merger to ▇▇▇▇▇ Holdings, Inc. ("Parent"), Sun Gro
Horticulture Inc., a Nevada corporation ("Sun Gro-U.S."), Enviro-Safe
Laboratories, Inc., a Florida corporation ("Enviro-Safe" and together with Sun
Gro-U.S. and Parent, the "Guarantors"), and The Bank of New York, a New York
banking corporation (the "Successor Trustee"), as successor Trustee to IBJ
▇▇▇▇▇▇▇▇ Bank & Trust Company (the "Original Trustee") with respect to the
Company's 11 3/4% Senior Subordinated Notes due 2005 and Series B 11 3/4% Senior
Subordinated Notes due 2005 (the "Third Supplement"). Capitalized terms used but
not otherwise defined in this Third Supplement shall have the meanings ascribed
to such terms in the Indenture as amended and supplemented from time to time in
accordance with its terms.
WHEREAS, the Company, Parent, Sun Gro-U.S. and the Original Trustee
entered into the Indenture, dated as of October 19, 1995, as amended and
supplemented by the First Supplement to Indenture (the "First Supplement"),
dated June 26, 1998, and the Second Supplement to Indenture (the "Second
Supplement"), dated November 22, 2000 (as amended and supplemented, the
"Indenture");
WHEREAS, the parties hereto wish to amend the Indenture to (i) modify
the definition of "Permitted Indebtedness" in Section 1.01 as set forth herein;
(ii) increase the purchase price upon a Change of Control Offer from 101.00% to
105.00%; and (iii) add to the events constituting a "Change of Control" in
Section 1.01 as set forth herein (the "Amendment to the Indenture");
WHEREAS, the parties hereto wish to amend the Notes to (i) increase
the interest rate payable thereon from 11 3/4% to 12 3/4% per annum; (ii)
increase the optional redemption price to 106.00%; and (iii) require payment at
maturity of a premium equal to 5.00% of the principal amount to be repaid, each
as set forth in the amended Note attached hereto as Exhibit A (the "Amendment to
the Notes" and together with the Amendment to the Indenture, the "Amendment");
WHEREAS, the Holder or Holders of at least 60% of the aggregate
principal amount of Notes outstanding have waived compliance with the provision
set forth in Section 9.05 of the Indenture, which requires that the record date
with respect to a consent solicitation shall be at least 30 days prior to the
first solicitation of such consent (the "Waiver"); and
WHEREAS, the boards of directors of the Company and the Guarantors
have approved and adopted the Amendment and the form, terms and provisions of
the Third Supplement, and the Holder or Holders of at least a majority in
aggregate principal amount of the outstanding Notes have consented to the
Amendment pursuant to Section 9.02 of the Indenture.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree, for the equal and proportionate benefit
of all Holders of the Notes, as follows:
ARTICLE I
AMENDMENT
Section 1.01. Amendment to Section 1.01 of the Indenture.
------------------------------------------
(a) The following sentence shall be added at the end of the
definition of "Change of Control":
"Without limiting or modifying the preceding in any respect, a Change
of control shall also be deemed to occur upon the occurrence of one or more of
the following events, in addition to the events described in the first sentence
above: (i) the sale, lease, exchange or other transfer (by merger, consolidation
or otherwise), in one transaction or a series of related transactions, of all or
substantially all of the assets of the Company or ▇▇▇▇▇ Horticulture, Inc., a
Delaware corporation and the successor by merger to Holdings ("▇▇▇▇▇
Horticulture"), to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or any of its Affiliates (or to any Person
in which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or any of its Affiliates holds more than 50% of the
economic interests or more than 20% of the voting interests); (ii) the
acquisition (by merger, consolidation or otherwise) by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or any
of its Affiliates (or by any Person in which Madison Dearborn or any of its
Affiliates holds more than 50% of the economic interests or more than 20% of the
voting interests), directly or indirectly, of all or substantially all of the
voting stock of ▇▇▇▇▇ Horticulture in one transaction or a series of related
transactions if, after such acquisition, either (a) ▇▇▇▇▇ Horticulture ceases to
have any class of equity securities registered under the Securities Exchange Act
of 1934, as amended, or (b) ▇▇▇▇▇ Horticulture ceases to have any class of
equity securities listed on the Nasdaq National Market System or on any national
securities exchange; or (iii) the acquisition by any Person or Group (other than
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) directly or indirectly, of more than 40% of the voting power
of ▇▇▇▇▇ Horticulture; or (iv) the acquisition by any Person (other than ▇▇▇▇▇
Horticulture) of any Capital Stock of the Company
(b) Clause (ii) of the definition of "Permitted Indebtedness" in
Section 1.01 of the Indenture is hereby amended to read as follows:
"(ii) Indebtedness of the Company and its Subsidiaries (and the
Company and each Subsidiary of the Company to the extent it is not an obligor
may guarantee such Indebtedness) incurred under the Senior Credit Facilities in
an aggregate principal amount not to exceed $365 million (less the amount of all
mandatory principal repayments and required permanent reductions made
thereunder) plus up to an additional $35 million in Indebtedness under the
supplemental revolving credit facility of the Senior Credit Facilities, provided
that any borrowings under such
3
supplemental revolving credit facility borrowed and outstanding on or before
March 15 and on or after June 15 of 2001and 2002 shall not constitute Permitted
Indebtedness;"
Section 1.02. Amendment to Section 4.15 of the Indenture. The reference
to "101%" in the first sentence of Section 4.15(a) is hereby amended to refer to
"105%."
Section 1.03. Amendment to the Notes. The Notes are hereby amended to
read as set forth in the amended Note attached hereto as Exhibit A, and each
Holder and all Holders of Notes outstanding on or after the date of this
agreement are entitled to all of the rights and privileges set forth therein.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. Instruments to be Read Together. This Third Supplement
is an indenture supplement to and in implementation of the Indenture, and said
Indenture and the First Supplement, Second Supplement and this Third Supplement
shall henceforth be read together.
Section 2.02. Confirmation. The Indenture, as amended and
supplemented by this Third Supplement, is in all respects confirmed and
preserved.
Section 2.03. Counterparts. This Third Supplement may be executed in
any number of counterparts, each of which, when so executed, shall be deemed to
be an original, but all of which shall together constitute one and the same
instrument.
Section 2.04. Effectiveness. This Third Supplement shall become
effective immediately upon its execution in accordance with the provisions of
Article Nine of the Indenture.
Section 2.05. GOVERNING LAW. THIS THIRD SUPPLEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF THE CONFLICTS OF LAWS RULES THEREOF.
Section 2.06. Disclaimer of Successor ▇▇▇▇▇▇▇'s Responsibility. In
executing this Third Supplement, the Successor Trustee shall be entitled to all
the privileged and immunities afforded to the Trustee under the terms and
conditions of the Indenture.
* * * *
4
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplement to
Indenture to be duly executed as of the date first above written.
▇▇▇▇▇ NURSERIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Financial Officer and Secretary
▇▇▇▇▇ HORTICULTURE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Financial Officer and Secretary
SUN GRO HORTICULTURE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Financial Officer and Secretary
ENVIRO-SAFE LABORATORIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Financial Officer and Secretary
THE BANK OF NEW YORK
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Its: Vice President
EXHIBIT A
[FORM OF NOTE]
CUSIP No.: 433245 AB3
▇▇▇▇▇ NURSERIES, INC.
(formerly known as ▇▇▇▇▇ Horticulture, Inc.)
SERIES B 11 3/4% SENIOR SUBORDINATED NOTE DUE 2005
Amended and Restated as of November 22, 2000
The Series B 11 3/4% Senior Subordinated Notes due 2005 were
originally issued on February 20, 1996.
No. $
▇▇▇▇▇ NURSERIES, INC., a California corporation formerly known as
▇▇▇▇▇ Horticulture, Inc. (the "Company," which term includes any successor
entity), for value received promises to pay to or
registered assigns, the principal sum of Dollars
(the "Principal Amount") on October 15, 2005 (the "Maturity Date") plus an
additional payment to be paid on the Maturity Date in an amount equal to 5.00%
of the Principal Amount to be repaid on the Maturity Date.
Interest Payment Dates: June 30 and December 31
Record Dates: June 15 and December 15
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
▇▇▇▇▇ NURSERIES, INC.
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Dated: Title:
Certificate of Authentication
This is one of the Series B 11 3/4% Senior Subordinated Notes due 2005
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: By: ______________________________
Authorized Signatory
(REVERSE OF SECURITY)
Series B 11 3/4% Senior Subordinated Note due 2005
1. Interest. ▇▇▇▇▇ NURSERIES, INC., a California corporation
formerly known as ▇▇▇▇▇ Horticulture, Inc. (the "Company"), promises to pay
interest on the principal amount of this Note at rate per annum of 11 3/4%;
provided, however, that beginning on November 22, 2000 (the second business day
after effectiveness of the Third Supplement), such rate shall be 12 3/4%.
Interest on the Notes will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from October 19, 1995. The
Company will pay interest semi-annually in arrears on each Interest Payment
Date, commencing December 31, 1995. 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 on overdue
installments of interest from time to time on demand at the rate borne by the
Notes plus 2% per annum and on overdue installments of interest (without regard
to any applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest Payment
Date even if the Notes are canceled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by its check payable in such U.S.
Legal Tender. The Company 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. The Bank of New York, a New York
banking corporation (the "BONY"), will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar without notice to
the Holders.
4. Indenture and Guarantee. The Company issued the Notes under an
Indenture, dated as of October 19, 1995 (the "Indenture"), among the Company,
formerly known as ▇▇▇▇▇ Horticulture, Inc., ▇▇▇▇▇ Horticulture, Inc., a Delaware
corporation and successor by merger to ▇▇▇▇▇ Holdings, Inc. ("Holdings"), Sun
Gro Horticulture Inc., a Nevada corporation ("Sun Gro-U.S."), and Enviro-Safe
Laboratories, Inc., a Florida corporation ("Enviro-Safe" and together with Sun
Gro-U.S. and Holdings, the "Guarantors") and BONY (in such capacity, the
"Trustee"), as successor trustee to IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. 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
(15 U.S. Code 55 77aaa-l7bbbb) (the "TIA"), as in effect on the date of 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. The Notes are general unsecured obligations of the
Company and were initially
limited in aggregate principal amount to $120,000,000. After giving effect to
the partial redemption of the Notes that occurred on June 28, 1998, the Notes
are limited in aggregate principal amount to $78,000,000. Payment on each Note
is guaranteed on a senior subordinated basis by the Guarantors pursuant to
Article Eleven of the Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
5. Subordination. The Notes are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. The Guarantees in respect of the Notes are subordinated
in right of payment, in the manner and to the extent set forth in the Indenture,
to the prior payment in full in cash or Cash Equivalents of all Guarantor Senior
Debt of each Guarantor, whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed. Each Holder by his
acceptance hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to take such action as may be
necessary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in- fact for such purposes.
6. Redemption.
----------
(a) Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole at any time or in part from time to time, on and
after October 15, 2000, upon not less than 30 nor more than 60 days' notice, at
a redemption price of 106.00% of the principal amount thereof, plus accrued
interest thereon to the date of redemption.
(b) Optional Redemption Upon Public Equity Offerings. At any time, or
from time to time, on or prior to October 15, 1998, the Company may, at its
option, use the net cash proceeds of one or more Public Equity Offerings (as
defined in the Indenture) to redeem the Notes at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on October 15 of the year set forth below
plus, in each case, accrued and unpaid interest thereon, if any, to the date of
redemption:
Year Percentage
---- ----------
1995 . . . . . . . . . . . . . . . . . . . . . 111.750%
1996 . . . . . . . . . . . . . . . . . . . . . 110.444%
1997 . . . . . . . . . . . . . . . . . . . . . 109.139%
provided that at least 65% of the initial 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 Company shall make such redemption not more than 120
days after the consummation of any such Public Equity Offering.
7. Notice of Redemption. Notice of 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 such Holder's registered address. Notes in
denominations larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then, unless the Company defaults in the
payment of such Redemption Price plus accrued interest, if any, the Notes called
for redemption will cease to bear interest from and after such Redemption Date
and the only right of the Holders of such Notes will be to receive payment of
the Redemption Price plus accrued interest, if any.
8. Offers to Purchase. Sections 4.15 and 4.16 of the Indenture
provide that, after certain Asset Sales (as defined in the Indenture) and upon
the occurrence of a Change of Control (as defined in the Indenture), and subject
to further limitations contained therein, the Company will make an offer to
purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
9. 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 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.
10. Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity. If the Company at any
time deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the Indenture
and the Notes (including certain covenants, but excluding its obligation to pay
the principal of and interest on the Notes).
13. Amendment; Supplement; Waiver. Subject to certain exceptions, the
Indenture, the Notes or the Guarantee 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 noncompliance with any provision may be waived with the written
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 or 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 Article Five of the
Indenture or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
14. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness or Liens, make payments in respect of its Capital Stock
or certain Indebtedness, enter into transactions with Affiliates, create
dividend or other payment restrictions affecting Subsidiaries, merge or
consolidate with any other Person, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
15. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor will be released from those obligations.
16. 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
in the manner, at the time 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 reasonably 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 any continuing Default or Event of Default
(except a Default in payment of principal or interest) if it determines that
withholding notice is in their interest.
17. 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 Holdings, the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others. No stockholder, director, officer,
employee or incorporator, as such, of the Company shall have any liability for
any obligation of the Company 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.
19. Authentication. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
20. Governing Law. The laws of the State of New York shall govern
this Note and the Indenture, without regard to principles of conflict of laws.
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 Company has 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. Indenture. Each Holder, by accepting a Note, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to: ▇▇▇▇▇ Nurseries, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Chief Executive Officer.
[FORM OF NOTATION ON NOTE RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
▇▇▇▇▇ Horticulture, Inc., a Delaware corporation and successor by
merger to ▇▇▇▇▇ Holdings, Inc. ("Holdings"), Sun Gro Horticulture Inc., a Nevada
corporation ("Sun Gro-U.S."), and Enviro-Safe Laboratories, Inc., a Florida
corporation ("Enviro-Safe" and together with Sun Gro-U.S. and Holdings, the
"Guarantors") have unconditionally guaranteed on a senior subordinated basis
(such guarantee by each Guarantor being referred to herein as the "Guarantee")
(i) 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 and interest, if any, on the Notes, to the
extent lawful, and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee all in accordance with the terms set
forth in Article Eleven and Article Twelve of the Indenture and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Holders 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 Guarantor Senior Debt of such Guarantor, to the extent and in the
manner provided, in Article Eleven and Article Twelve of the Indenture, and
reference is hereby made to such Indenture for the precise terms of the
Guarantee therein made.
No past, present or future stockholder, officer, director, employee or
incorporator, as such, of any of the Guarantors shall have any liability under
the Guarantee by reason of such person's status as stockholder, officer,
director, employee or incorporator. 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 Guarantees.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Notes upon which the Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
▇▇▇▇▇ HORTICULTURE, INC.
By: _________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attest: ________________________ Title: Chief Financial Officer
and Secretary
SUN GRO HORTICULTURE INC.
By: _________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attest: ________________________ Title: Chief Financial Officer
and Secretary
ENVIRO-SAFE LABORATORIES, INC.
By: _________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attest: ________________________ Title: Chief Financial Officer
and Secretary
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill, in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
______________________________________________________________________________
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint_______________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: _________________________ Signed: _______________________________
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee: _____________________________
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.15 or Section 4.16 of the Indenture, check the appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$_____________________________
Dated: _______________________ _______________________________________________
NOTICE: The signature on this assignment must
correspond with the name as it appears
upon the face of the within Note in
every particular without alteration or
enlargement or any change whatsoever
and be guaranteed by the endorser's
bank or broker.
Signature Guarantee: _____________________________________