EXHIBIT 4.4
EASY GARDENER PRODUCTS, LTD.
9.40% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE April 15, 2028
Registered No. D-2 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
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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
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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.
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: /S/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Manager/President
Attest:
/S/ Xxxxx Xxxxxxx
--------------------------
Name: Xxxxx Xxxxxxx
Title: Corporate Secretary
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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 October 29, 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
October 29, 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, 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
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redeemed to the Redemption Date, plus 100% of the principal amount thereof.
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
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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.
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, EXCEPT THAT THE IMMUNITIES AND STANDARD OF
CARE OF THE TRUSTEE SHALL BE GOVERNED BY DELAWARE LAW.
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This is one of the Securities referred to in the within
mentioned Indenture.
Dated: October 29, 2003
WILMINGTON TRUST COMPANY,
as Trustee
By: /S/ X. Xxxx
--------------------------------
Authorized Officer
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