FIRST SUPPLEMENTAL INDENTURE
EXHIBIT
99.1
FIRST SUPPLEMENTAL
INDENTURE
FIRST
SUPPLEMENTAL INDENTURE, dated as of February 6, 2008 (this "Supplemental
Indenture"), by and among Xxxxx Nurseries, Inc., a California corporation
(the "Company"), having its
principal offices at 00000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx, Xxxxx Horticulture,
Inc., a Delaware corporation (the "Parent"), and The
Bank of New York Trust Company, N.A., a national banking association organized
under the laws of the United States of America, as successor trustee (the "Trustee").
RECITALS:
WHEREAS,
the Company executed and delivered its Indenture, dated as of September 30,
2003, (the "Indenture"), to the
Trustee, pursuant to which the Company has $175 million aggregate principal
amount of 10.25% Senior Notes due 2011 (the "Notes")
outstanding. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture;
WHEREAS,
Section 9.02 of the Indenture provides that the Company and the Trustee may,
with certain exceptions, amend the Indenture and the Notes with the consent of
the Holders of not less than a majority in principal amount of the outstanding
Notes affected by such amendment;
WHEREAS,
the Company has distributed a Consent Solicitation Statement, dated as of
January 28, 2008 (the "Solicitation
Statement"), and accompanying consent form, dated as of January 28, 2008,
to the Holders of the Notes in connection with a certain proposed amendment to
the Indenture as described in the Solicitation Statement (the "Proposed
Amendment");
WHEREAS,
the Holders of more than a majority of the principal amount of the Notes
outstanding have duly consented to the Proposed Amendment;
WHEREAS,
the Board of Directors of the Company has determined that it is in the best
interests of the Company to authorize and approve the Proposed Amendment;
and
WHEREAS,
an Officers' Certificate and Opinion of Counsel have been delivered to the
Trustee in accordance with Sections 9.06, 11.04 and 11.05 of the
Indenture.
WHEREAS,
the execution and delivery of this Supplemental Indenture have been duly
authorized by all necessary corporate action on the part of the Company and the
Parent and all conditions and requirements necessary to make this instrument a
valid and binding agreement have been duly performed and complied
with.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Trustee mutually covenant and agree, for the equal and ratable
benefit of the Holders of the Notes, as follows:
ARTICLE I
— AMENDMENT
SECTION
1.01. AMENDMENT TO THE REPORTING REQUIREMENTS IN THE INDENTURE.
Section
4.08 of the Indenture is amended and restated in its entirety to read as
follows:
“Whether or not required by the rules
and regulations of the Commission, so long as any Notes are outstanding, the
Parent and the Company will furnish paper copies of the following information
and reports to the Trustee, and the Company will make such information and
reports available to any Holder of Notes, any beneficial owner of Notes or any
prospective investor in the Notes by posting such information and reports on
IntraLinks or a comparable password protected electronic transmission system,
which will require a confidentiality acknowledgement:
(1) all quarterly and annual
information that would be required to be contained in a filing with the
Commission on Forms 10-Q and 10-K if the Parent or the Company were required to
file such forms with the Commission (in each case in accordance with the
Commission’s rules and regulations as in effect as of the Effective Date),
including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" that describes the financial condition and results of
operations of the Parent, the Company and their respective consolidated
Subsidiaries (showing in reasonable detail, either on the face of the financial
statements or in the footnotes thereto and in Management's Discussion and
Analysis of Financial Condition and Results of Operations, the financial
condition and results of operations of the Parent, the Company and the Parent's
Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Parent, if any) and, with
respect to the annual information only, a report thereon by the Company's
certified independent accountants (no review shall be required by the Parent’s
or the Company’s independent accountants with respect to quarterly financial
statements), in each case within the time periods specified in the Commission’s
rules and regulations applicable to non-accelerated filers (if the Parent or the
Company were subject to such rules and regulations) as defined in the
Commission’s rules and regulations as in effect as of the Effective Date; provided, that, such annual
financial information shall not be required to include the information set forth
in Items 1, 1A, 1B, 2, 5, 6, 7A, 9A, 9A(T), 9B, 10, 11 and 14 of Form 10-K and
Items 3, 4 and 4T of Part I of Form 10-Q and Items 1A and 5 of Part II of Form
10-Q, in each case as in accordance with the Commission’s rules and regulations
as in effect as of the Effective Date and provided, further, that such
annual information shall include, for the applicable period and the comparable
prior period, disclosure regarding percentage of net revenues (i) by customer
type (e.g. home centers, mass merchandisers, retail & independent garden
center, grocery & hardware and other) and (ii) for each customer accounting
for 10% or more of the Company’s net sales; and
2
(2) all current reports that would be
required to be filed with the Commission on Form 8-K if the Parent and the
Company were required to file such reports, but excluding executive compensation
information required by Item 5.02(f), in each case within six (6) days after the
expiration of the time periods specified in the Commission's rules and
regulations as in effect as of the Effective Date.
In addition, for so long as any Notes
remain outstanding, the Parent and the Company will furnish to the Holders upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
Notwithstanding the foregoing
provisions of this Section 4.08, for so long as the Parent complies with the
requirements of Rule 3-10 of Regulation S-X promulgated by the Commission (or
any successor provision), the reports, information and other documents required
to be provided as described hereunder may, at the Company’s option, be provided
by and be those of the Parent rather than the Company.
In addition to the foregoing, upon
request, the Company will provide to any Person who, individually or together
with its Affiliates, is the beneficial owner (as defined in Rule 13d-3 of the
Exchange Act) of 35% or more of the outstanding Notes and upon such Person’s
request, will provide to such Person’s Representatives (as defined below),
access during normal business hours and upon reasonable notice (i) to make true
and correct copies of all documents, reports, financial data and other
information such Person may reasonably request, (ii) the right to inspect the
Company’s books and records (and to make copies thereof) and its properties and
assets, (iii) the right to meet and consult with the principal officers of the
Company regarding the business, financial position and operating results of the
Company and (iv) the right to meet with the Company’s auditors to the extent
acceptable to the auditors (such information, “Supplemental
Information”). The foregoing rights shall not be available to any
Person if the Company reasonably believes such Person or any of its Affiliates
to be engaged in a Competitive Business. A Person shall be deemed to
be engaged in a Competitive Business if such Person, directly or indirectly,
participates in a Competitive Business. For purposes of this
Agreement, the term "participate" includes any interest in any enterprise,
whether as an owner, officer, director, employee, partner, sole proprietor,
consultant or otherwise; provided that the term "participate" shall not include
(i) ownership of less than 2% of the stock of a publicly-held corporation whose
stock is traded on a national securities exchange or in the over-the-counter
market or (ii) acting as a lender or the ownership of debt securities that are
not convertible into equity securities.
3
Each
Person requesting Supplemental Information will be deemed to have agreed to
maintain and will maintain the confidentiality of such information to the extent
such information would be deemed to constitute Confidential Information,
provided that such Person may disclose Confidential Information to (i) its
directors, officers, employees, agents, advisors, attorneys and Affiliates (to
the extent such disclosure reasonably relates to the administration of the
investment represented by its Notes) (collectively “Representatives”) who agree
to hold confidential the Confidential Information substantially in accordance
with the terms of this Section 4.08 (and such Person requesting Supplemental
Information shall be responsible for any breach by its Representatives), (ii)
any federal or state regulatory authority having jurisdiction over such Person,
or (iii) any other Person to which such delivery or disclosure may be necessary
or appropriate to effect compliance with any law, rule, regulation or order
applicable to such Person. On request by the Company in connection
with the delivery to any Person of Supplemental Information, such Person will
enter into an agreement with the Company embodying the provisions of this
Section 4.08 and other provisions as agreed.
The receipt by the Trustee or any
Holder of any such reports and documents pursuant to this Section 4.08 shall not
constitute notice or constructive notice of any information contained in such
documents or determinable from information contained in such documents,
including the Company’s compliance with any covenants hereunder (as to which the
Trustee is entitled to rely exclusively on an Officers’
Certificate).”
The amendment would add the following
terms:
“Competitive
Business” means any business which is a direct competitor to the Company’s or
its Subsidiaries’ nursery business.
“Confidential
Information” means any Supplemental Information delivered pursuant to Section
4.08 by or on behalf of the Parent, the Company or any Subsidiary to any Person,
provided that such term shall not include any information that (i) was publicly
known or otherwise known to such Person prior to the time of such disclosure,
(ii) subsequently becomes publicly known through no act or omission by such
Person or its Representatives or any other Person acting on such Person’s
behalf, or (iii) otherwise becomes available to such Person on a
non-confidential basis from a source other than the Parent, the Company or any
Subsidiary provided that such Person has no reasonable basis to believe such
source is or was bound by a confidentiality agreement with the Parent, the
Company or any Subsidiary.
“Effective
Date” means February 6, 2008.
ARTICLE
II — MISCELLANEOUS
SECTION
2.01. EFFECT OF SUPPLEMENTAL INDENTURE. From and after the effective date of
this Supplemental Indenture, the Indenture and the Notes shall be supplemented
in accordance herewith, and this Supplemental Indenture shall form a part of the
Indenture and the Notes for all purposes, and every Holder of Notes heretofore
or hereafter authenticated and delivered under the Indenture shall be bound
thereby.
4
SECTION
2.02. INDENTURE REMAINS IN FULL FORCE AND EFFECT. Except as supplemented by this
Supplemental Indenture, all provisions in the Indenture and the Notes shall
remain in full force and effect.
SECTION
2.03. REFERENCES TO SUPPLEMENTAL INDENTURE. Any and all notices, requests,
certificates and other instruments executed and delivered after the execution
and delivery of this Supplemental Indenture may refer to the Indenture without
making specific reference to this Supplemental Indenture, but nevertheless all
such references shall include this Supplemental Indenture unless the context
requires otherwise.
SECTION
2.04. CONFLICT WITH TRUST INDENTURE ACT. The Company will comply with the
provisions of the TIA. If any provision of this Supplemental Indenture limits,
qualifies or conflicts with any provision of the TIA that is required under the
TIA to be part of and govern any provision of this Supplemental Indenture, the
provision of the TIA shall control. If any provision of this Supplemental
Indenture modifies or excludes any provision of the TIA that may be so modified
or excluded, the provision of the TIA shall be deemed to apply to the Indenture
as so modified or to be excluded by this Supplemental Indenture, as the case may
be.
SECTION
2.05. SEVERABILITY. If any court of competent jurisdiction shall determine that
any provision in this Supplemental Indenture 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.
SECTION
2.06. HEADINGS. The Article and Section headings of this Supplemental Indenture
have been inserted for convenience of reference only, are not to be considered a
part of this Supplemental Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
SECTION
2.07. BENEFITS OF SUPPLEMENTAL INDENTURE. Nothing in this Supplemental Indenture
or the Notes, express or implied, shall give to any Person, other than the
parties hereto and thereto and their successors hereunder and thereunder and the
Holders of the Notes any benefit of any legal or equitable right, remedy or
claim under the Indenture, this Supplemental Indenture or the
Notes.
SECTION
2.08. SUCCESSORS AND ASSIGNS. All agreements by the Company in this Supplemental
Indenture shall bind its successors and assigns, whether or not so expressed.
All agreements by the Trustee in this Supplemental Indenture shall bind its
successors, whether or not so expressed.
SECTION
2.09. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals contained herein shall
be taken as the statements of the Company and the Trustee assumes no
responsibility for their correctness, or for the validity or sufficiency of this
Supplemental Indenture.
5
SECTION
2.10. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. In entering into this
Supplemental Indenture, the Trustee shall be entitled to the benefit of every
provision of the Indenture and the Notes relating to the conduct or affecting
the liability of, or affording protection to, the Trustee, whether or not
elsewhere herein so provided.
SECTION
2.11. GOVERNING LAW. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the TIA that are required
to be part of this Supplemental Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION
2.12. COUNTERPART ORIGINALS. This Supplemental Indenture may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be
deemed to be an original, but all of such counterparts shall together constitute
one and the same instrument.
SECTION
2.13. EFFECTIVENESS. This Supplemental Indenture shall become effective upon the
execution and delivery hereof by the Trustee provided for in the Solicitation
Statement.
SECTION
2.14. CONFIRMATION. Each of the Company, the Subsidiary Guarantors and the
Trustee hereby confirms and reaffirms the Indenture in every particular except
as amended and supplemented by this Supplemental Indenture.
[Signature page
follows]
6
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed as of the date first above written.
|
XXXXX
NURSERIES, INC.
By: /s/ Xxxxxxx X.
Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Chief
Financial Officer, Secretary & Treasurer
XXXXX
HORTICULTURE, INC.
By: /s/ Xxxxxxx X.
Xxxxxxxx
Name:
Xxxxxxx X.
Xxxxxxxx
Title:
Chief
Financial Officer, Secretary & Treasurer
THE
BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
By: /s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Assistant Vice President
|
7
