Exhibit 4.2
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") dated as
of February 6, 2002 by and among The Scotts Company, an Ohio corporation (the
"Company"), Scotts Manufacturing Company ("Scotts Manufacturing," as successor
by merger to Scotts Miracle-Gro Products, Inc.), Scotts Temecula Operations, LLC
("Scotts Temecula", as successor by merger to Republic Tool & Manufacturing
Corp.) and the other guarantors named on the signature pages hereto
(collectively with Scotts Manufacturing and Scotts Temecula, the "Guarantors")
and State Street Bank and Trust Company, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings assigned to such terms
in the Indenture (as defined below).
W I T N E S S E T H
WHEREAS, the Company, the Guarantors (including the
predecessors of Scotts Manufacturing and Scotts Temecula) and the Trustee
previously duly executed, and the Company and the Guarantors (including the
predecessors of Scotts Manufacturing and Scotts Temecula) duly delivered to the
Trustee, an Indenture (the "Indenture") dated as of January 21, 1999 providing
for the issuance of an aggregate principal amount of up to $400,000,000 of
8.625% Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS, the Company previously issued $330,000,000 of the
Notes as of January 21, 1999 (the "Initial Notes") and now wishes to issue the
remaining $70,000,000 of the Notes permitted to be issued under the Indenture
(the "Additional Notes");
WHEREAS, a supplemental indenture is required to be entered
into in connection with the merger of Guarantors pursuant to Section 11.05;
WHEREAS, the Company desires to amend certain provisions to
provide for the issuance of Additional Notes;
WHEREAS, the Indenture provides that a Subsidiary required to
execute a Guarantee of the Notes shall execute and deliver a supplemental
indenture to the Trustee in connection therewith;
WHEREAS, the Board of Directors of the Company has authorized
the execution of this Supplemental Indenture and its delivery to the Trustee;
WHEREAS, the Company has delivered an Officers' Certificate
and an Opinion of Counsel to the Trustee pursuant to Sections 7.02 and 13.04 of
the Indenture; and
WHEREAS, all other actions necessary to make this Supplemental
Indenture a legal, valid and binding obligation of the parties hereto in
accordance with its terms and the terms of the Indenture have been performed;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Guarantors, the
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Company and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. AMENDMENTS TO INDENTURE.
I. Section 1.01 of the Indenture shall be amended as follows:
(a) by deleting the definition of "Additional Notes" and substituting
in lieu thereof the following:
"Additional Notes" means up to $70.0 million in aggregate principal
amount of Notes (other than the Initial Notes) issued under this Indenture in
accordance with Sections 2.02 and 4.09 hereof.
(b) by deleting the definition of "Initial Notes" and substituting in
lieu thereof the following:
"Initial Notes" means $330.0 million in aggregate principal amount of
Notes issued under this Indenture on January 21, 1999.
(c) by deleting the definition of "Initial Purchaser" and substituting
in lieu thereof the following:
"Initial Purchaser" shall have the meaning assigned to such term in the
Offering Memoranda.
(d) by deleting the definition of "Liquidated Damages" and substituting
in lieu thereof the following:
"Liquidated Damages" means all amounts owing pursuant to the
Registration Rights Agreement.
(e) by deleting the definition of "Offering Memorandum" and
substituting in lieu thereof the following:
"Offering Memoranda" means the Offering Memorandum, dated January 21,
1999, pursuant to which the Initial Notes were offered and sold, and the
Offering Memorandum, dated February 1, 2002, pursuant to which the Additional
Notes were offered and sold.
II. Exhibits A-1 and A-2 to the Indenture shall be amended as
follows:
(a) by deleting the first sentence of Section 1 in Exhibit A-1
and in Exhibit A-2 entitled "Interest" and substituting in lieu thereof
the following:
"The Scotts Company, an Ohio corporation (the "Company"),
promises to pay interest on the principal amount of this Note at 8.625%
per annum from February 6, 2002 until maturity and shall pay the
Liquidated Damages payable pursuant to the Registration Rights
Agreement."
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(b) by deleting the third sentence of Section 1 in Exhibit A-1
and in Exhibit A-2 entitled "Interest" and substituting in lieu thereof
the following:
"Interest on the Notes shall accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the date
of issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be July 15, 2002."
2. ISSUANCE OF ADDITIONAL NOTES AND GUARANTEES. The Company
agrees to issue the Additional Notes and the Guarantors each agree to
unconditionally guarantee all of the Company's obligations under the Notes, in
each case in accordance with the terms and conditions set forth in the
Indenture.
3. AGREEMENT TO GUARANTEE BY GUARANTORS. Each Guarantor
hereby agrees as follows:
(a) Along with the other Guarantors, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and
assigns irrespective of the validity and unenforceability of
the Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Notes
will be promptly paid in full when due,
whether at maturity, by acceleration,
redemption or otherwise, and interest on the
overdue principal of and interest on the
Notes, if any, if lawful, and all other
obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in
accordance with the terms hereof and
thereof; and
(ii) in case of any extension of time of payment
or renewal of any Notes or any of such other
obligations, that 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. Failing payment when due of
any amount so guaranteed or any performance
so guaranteed for whatever reason, the
Guarantors shall be jointly and severally
obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of
the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the
Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense
of a guarantor.
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(c) The following is hereby waived: diligence, presentment,
demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest,
notice and all demands whatsoever.
(d) The Subsidiary Guarantees shall not be discharged except
by complete performance of the obligations contained in the
Notes and the Indenture, and each Guarantor accepts all
obligations of an Initial Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any
Custodian, Trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantors,
any amount paid by either to the Trustee or such Holder, the
Subsidiary Guarantees, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) Each Guarantor shall not be entitled to any right of
subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as
provided in Article 6 of the Indenture for the purposes of the
Guarantees of all of the Company's Obligations under the Notes
and the Indenture (the "Subsidiary Guarantees"),
notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of
the Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the
Guarantors for the purpose of the Subsidiary Guarantees.
(h) The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the
Guarantee.
(i) The obligations hereunder shall be subject to the
subordination provisions of the Indenture.
4. EXECUTION AND DELIVERY. Each Guarantor agrees that the
Subsidiary Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary Guarantee.
5. GUARANTOR MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Each Guarantor may not consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person)
another corporation, Person or entity whether or not
affiliated with such Guarantor unless:
(i) subject to Sections 11.05 of the Indenture,
the Person formed by or surviving any such
consolidation or merger (if other than a
Guarantor or the Company) unconditionally
assumes all the
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obligations of such Guarantor, pursuant to a
supplemental indenture in form and substance
reasonably satisfactory to the Trustee,
under the Notes, the Indenture and the
Subsidiary Guarantee on the terms set forth
herein or therein; and
(ii) immediately after giving effect to such
transaction, no Default or Event of Default
exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantees endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of
the Indenture to be performed by the Guarantor, such successor
corporation shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein
as a Guarantor. Such successor corporation thereupon may cause
to be signed any or all of the Subsidiary Guarantees to be
endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Subsidiary Guarantees so
issued shall in all respects have the same legal rank and
benefit under the Indenture as the Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms
of the Indenture as though all of such Subsidiary Guarantees
had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 and Section 11.05
of Article 11 of the Indenture, and notwithstanding clauses
(a) and (b) above, nothing contained in the Indenture or in
any of the Notes shall prevent any consolidation or merger of
a Guarantor with or into the Company or another Guarantor, or
shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to
the Company or another Guarantor.
6. RELEASES.
(a) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the
capital stock of any Guarantor, then such Guarantor (in the
event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of
such Guarantor) or the corporation acquiring the property (in
the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be
released and relieved of any obligations under its Subsidiary
Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the
applicable provisions of the Indenture, including without
limitation Section 4.10 of the Indenture. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the
provisions of the Indenture, including without limitation
Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release
of any Guarantor from its obligations under its Subsidiary
Guarantee.
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(b) Any Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount
of principal of and interest on the Notes and for the other
obligations of any Guarantor under the Indenture as provided
in Article 11 of the Indenture.
7. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of each
Guarantor, as such, shall have any liability for any obligations of the Company
or any Guarantor under the Notes, any Subsidiary Guarantees, the Indenture or
this Supplemental Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the Securities and Exchange Commission that such a waiver is against
public policy.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
9. COUNTERPARTS The parties may sign any number of copies
of this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
10. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
11. THE TRUSTEE. The Trustee accepts the amendment to the
Indenture effected by this Supplemental Indenture. Without limiting the
generality of the foregoing, the Trustee has no responsibility for the
correctness of the recitals of fact herein contained which shall be taken as the
statements of the Guarantors and the Company and makes no representations as to
the validity or sufficiency of this Supplemental Indenture, except as to the due
and valid execution hereof by the Trustee, and shall incur no liability or
responsibility in respect of the validity thereof.
12. SUBSIDIARY GUARANTEES. Each of the Guarantors hereby
affirms that its Subsidiary Guarantee remains effective in all respects
regardless of the effect of this Supplement Indenture on the Indenture.
13. EFFECT ON INDENTURE. Upon execution of this Supplement
Indenture, the Indenture shall be modified in accordance herewith, but except as
expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect.
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14. EFFECT ON SUPPLEMENTAL INDENTURE. Upon execution, this
Supplemental Indenture shall form a part of the Indenture and the Supplemental
Indenture and the Indenture shall be read, taken and construed as one and the
same instrument for all purposes, and every holder of Notes heretofore or
hereafter authenticated and delivered under the Indenture shall be bound hereby.
This Supplemental Indenture shall become effective as of the date first above
written.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
THE SCOTTS COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
GUARANTORS:
SCOTTS MANUFACTURING COMPANY,
as successor by merger to
SCOTTS MIRACLE-GRO PRODUCTS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
SCOTTS TEMECULA OPERATIONS, LLC, as
successor by merger to REPUBLIC TOOL &
MANUFACTURING CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
MIRACLE-GRO LAWN PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
OMS INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
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HYPONEX CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
EARTHGRO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
SCOTTS PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
SCOTTS PROFESSIONAL PRODUCTS CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
SCOTTS-SIERRA HORTICULTURAL PRODUCTS
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
SCOTTS-SIERRA CROP PROTECTION COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
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SCOTTS-SIERRA INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
SWISS FARMS PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & CFO
STATE STREET BANK AND TRUST COMPANY,
As Trustee
By: /s/ Cauna ▇. ▇▇▇▇▇
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Name: Cauna ▇. ▇▇▇▇▇
Title: Vice President
THE SCOTTS COMPANY
$400,000,000
SERIES A AND SERIES B
8.625% SENIOR SUBORDINATED NOTES DUE 2009
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SUPPLEMENTAL INDENTURE
Dated as of February 6, 2002
to
INDENTURE
Dated as of January 21, 1999
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STATE STREET BANK AND TRUST COMPANY,
as Trustee