Exhibit 4.8
EASY GARDENER PRODUCTS, LTD.
9.40% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE April 15, 2028
Registered No. D-1 Principal Amount: $65,200,000.00
EASY GARDENER PRODUCTS, LTD., a limited partnership organized and
existing under the laws of Texas (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Wilmington Trust Company, as
Property Trustee, for EASY XXXXXXX PRODUCTS TRUST I, or registered assigns, the
principal sum of Sixty-Five Million, Two Hundred Thousand Dollars
($65,200,000.00) on April 15, 2028; provided that the Company may shorten the
Stated Maturity of the principal of this Security to a date not earlier than
April 15, 2003. The Company further promises to pay interest, compounded
monthly, on said principal sum from the date of original issuance or from the
most recent interest payment date (each such date, an "Interest Payment Date")
on which interest has been paid or duly provided for, monthly (subject to
deferral as set forth herein) in arrears on the 15th day of each calendar month
of each year (which payments commenced May 15, 1998) at the rate of 9.40% per
annum, until the principal hereof shall have become due and payable, plus
Additional Interest, if any, until the principal hereof is paid or duly provided
for or made available for payment and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the rate of 9.40% per
annum, compounded monthly. The amount of interest payable for any period shall
be computed on the basis of twelve 30-day months and a 360-day year. The amount
of interest payable for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on this Security is not a Business
Day, then a payment of the interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), with the same force and effect as if made
on the date the payment was originally payable. A "Business Day" shall mean any
day other than a Saturday or Sunday or a day on which banking institutions in
the State of Texas are authorized or required by law or executive order to
remain closed or on a day on which the Corporate Trust Office of the Trustee, or
the principal office of the Property Trustee under the Trust Agreement
(hereinafter referred to) for EASY GARDENER PRODUCTS TRUST I is closed for
business. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest installment, which shall be the next Business Day preceding
such Interest Payment Date. Any such interest installment not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this Security to
defer payment of interest on this Security, at any time or from time to time,
for up to 60 consecutive monthly interest payment periods with respect to each
deferral period (each an "Extension Period"), (during which Extension Periods
the Company shall have the right to make partial payments of interest on any
Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law)); provided, however, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Security; provided, further, that during any such Extension Period, the Company
shall not, and shall not permit any Subsidiary of the Company to, (i) declare or
pay any Distributions on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Company's partnership Interests (which
includes any general partner and limited partner interests), (ii) make any
payment of principal of or interest or premium, if any, on or repay, repurchase
or redeem any debt security of the Company (including Securities issued by the
Company pursuant to the Indenture other than the Securities represented by this
certificate) that ranks pari passu with or junior in interest to this Security,
or make any guarantee payments with respect to any guarantee by the Company of
the debt securities of any Subsidiaries of the Company if such guarantee ranks
pari passu in all respects with or junior in interest to this Security (other
than (a) distributions in Partnership Interests of the Company (which includes
general partner and limited partner interests), (b) payments under the Easy
Gardener Products, Ltd. Guarantee related to the Trust Preferred Securities
issued by EASY GARDENER PRODUCTS TRUST I, and (C) purchases of Partnership
Interests related to the issuance of Partnership Interests or rights under any
of the Company's benefit plans for its directors, officers, employees or
consultants), or (iii) redeem, purchase or acquire less than all of the
Securities represented by this certificate or any of the Preferred Securities.
Prior to the termination of any such Extension Period, the Company may further
extend such Extension Period, provided that such extension does not cause such
Extension Period to exceed 60 consecutive monthly interest payment periods or to
extend beyond the Stated Maturity. Upon the termination of any such Extension
Period and upon the payment of all amounts then due on any Interest Payment
Date, and subject to the foregoing limitation, the Company may elect to begin a
new Extension Period. No interest shall be due and payable during an Extension
Period except at the end thereof. The Company shall give the Trustee, the
Property Trustee and the Administrative Trustees of EASY GARDENER PRODUCTS TRUST
I notice of its election to begin any Extension Period (or an extension thereof)
at least one Business Day prior to the earlier of (i) the date on which
Distributions on the Preferred Securities would be payable except for the
election to begin or extend such Extension Period, or (ii) the date the
Administrative Trustees are required to give notice to the American Stock
Exchange, the New York Stock Exchange, the Nasdaq Stock Market or other
applicable stock exchange or automated quotation system on which the Preferred
Securities are then listed or quoted or to holders of such Preferred Securities
on the record date, or (iii) the date such Distributions are payable, but in any
event not less than one Business Day prior to such record date. The Trustee
shall give notice of the Company's election to begin a new Extension Period to
the holders of the Securities. There is no limitation on the number of times
that the Company may elect to begin an Extension Period.
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Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Trustee or at the office of
such paying agent or paying agents as the Company may designate from time to
time, maintained for that purpose in the United States, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Securities
Register or (ii) by transfer to an account maintained by the Person entitled
thereto, in immediately available funds, at such place and to such account as
may be designated by the Person entitled thereto as specified in the Securities
Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, unsecured and will rank junior and subordinate and subject in
right of payments to the prior payment in full of all Senior Debt and
Subordinated Debt, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his behalf to take such actions as may be necessary or
appropriate to effectuate the subordination so provided, and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof,
by his acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Debt and Subordinated Debt, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
Terms used but not defined herein have the meanings set forth in the
Indenture.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its seal.
EASY GARDENER PRODUCTS, LTD.
a Texas limited partnership
By:___________________________
Name:
Title:
Attest:
-----------------------------
Name:
Title:
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Reverse of Security
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Amended and Restated Junior Subordinated Indenture, dated as of
____________, 2003 (herein called the "Indenture"), between the Company and
Wilmington Trust Company, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $65,200,000.00.
All terms used in this Security that are defined in the Indenture and
in the Second Amended and Restated Trust Agreement, dated as of _____________,
2003, as amended (the "Trust Agreement"), for EASY GARDENER PRODUCTS TRUST I
among Easy Gardener Products, Ltd., as depositor, the Trustees named therein and
the holders, from time to time, of undivided beneficial interests in the assets
of Easy Gardener Products Trust I, shall have the meanings assigned to them in
the Indenture or the Trust Agreement, as the case may be.
The Company may at any time, at its option, on or after April 15, 2003,
and subject to the terms and conditions of Article XI of the Indenture, redeem
this Security in whole at any time or in part from time to time, without premium
or penalty, at a redemption price equal to the accrued and unpaid interest on
the Security so redeemed to the Redemption Date, plus 100% of the principal
amount thereof.
Upon the occurrence and during the continuation of a Tax Event or
Investment Company Event in respect of EASY GARDENER PRODUCTS TRUST I, the
Company may, at its option, at any time within 90 days of the occurrence of such
Tax Event or Investment Company Event, redeem this Security, in whole but not in
part, subject to the provisions of Section 11.7 and the other provisions of
Article XI of the Indenture, at a redemption price equal to the accrued and
unpaid interest on the Security so redeemed to the Redemption Date, plus 100% of
the principal amount thereof.
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In the event of redemption of this Security in part only, a new
Security or Securities of this series for the portion hereof not redeemed will
be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series may declare the principal amount of all the Securities
of this series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided that, in the case of
the Securities of this series issued to EASY GARDENER PRODUCTS TRUST I, if upon
an Event of Default, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series fails to declare
the principal of all the Securities of this series to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount of the
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration the
principal amount of and the accrued interest (including any Additional Interest)
on all the Securities of this series shall become immediately due and payable,
provided that the payment of principal and interest (including any Additional
Interest) on such Securities shall remain subordinated to the extent provided in
Article XIII of the Indenture.
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No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
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The Securities of this series are issuable only in registered form
without coupons in minimum denominations of $25 and any integral multiples of
$25 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of such series of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF.
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This is one of the Securities referred to in the within mentioned
Indenture.
Dated: ____________, 2003
WILMINGTON TRUST COMPANY,
as Trustee
By:_____________________________
Authorized Officer
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