EXHIBIT 2.2
ASSET PURCHASE AGREEMENT
BETWEEN
SUN GRO HORTICULTURE INC.
AND
SUN GRO HORTICULTURE CANADA LTD.
MARCH 26, 2002
ASSET PURCHASE AGREEMENT
THIS AGREEMENT dated for reference the 26th day of March,
2002,
AMONG:
SUN GRO HORTICULTURE INC., a body corporate duly incorporated
under the laws of the State of Nevada
(the "VENDOR")
AND:
SUN GRO HORTICULTURE CANADA LTD., a body corporate duly
continued under the laws of the Province of Nova Scotia
(the "PURCHASER")
AND:
XXXXX NURSERIES, INC., a body corporate duly incorporated
under the laws of California
AND:
XXXXX HORTICULTURE, INC., a body corporate duly incorporated
under the laws of California
(Xxxxx Nurseries, Inc. and Xxxxx Horticulture, Inc. are
collectively referred to as "XXXXX")
WITNESSES THAT WHEREAS:
A. The Vendor owns all of the issued and outstanding shares (the "Shares") of
the Purchaser;
B. The Vendor has agreed to sell to the Purchaser and the Purchaser has agreed
to purchase from the Vendor all of the Vendor's property and assets used in
connection with the Business (as hereinafter defined) other than the Excluded
Assets on the terms and conditions of this Agreement; and
C. It is the intention of the Vendor and the Purchaser that the purchase price
for the Purchased Assets (as hereinafter defined) will be the fair market value
thereof, as determined by the Vendor and the Purchaser.
NOW THEREFORE in consideration of the premises and the mutual covenants
hereafter set out the parties hereto represent, covenant and agree as follows:
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ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS. In this Agreement the following words, expressions and phrases,
unless there is something in the context inconsistent therewith, will have the
following meanings:
"ACT" means the INCOME TAX ACT (Canada) as amended, and a reference to
a provision of the Act includes a reference to any analogous provision
of Canadian provincial tax legislation that may be relevant in the
circumstances in which the reference occurs.
"AFFILIATE" has the meaning given to it in the CANADA BUSINESS
CORPORATIONS ACT.
"AGREEMENT" means this Asset Purchase Agreement, including all
schedules, and all instruments supplementing or amending or confirming
this Agreement and references to "ARTICLE" or "SECTION" mean and refer
to the specified Article or Section of this Agreement.
"ASSUMED OBLIGATIONS" means, except as expressly set out herein, all
obligations and liabilities (other than any debts owed to Xxxxx)
associated with the Business (including, for greater certainty, all
obligations described under section 461(h) or the Internal Revenue
Code) and the Purchased Assets, including, without limitation, all
current liabilities of the Business as of the Effective Time and the
obligations arising under the Contracts assigned to the Purchaser
whether arising prior to or after the Effective Time.
"BUSINESS" means the growing media mixing, distribution and sales
business carried on by the Vendor as at the Effective Time.
"CLOSING" means the completion of the sale to and purchase by the
Purchaser of the Purchased Assets as contemplated hereby.
"CLOSING DATE" has the meaning set out in Section 8.1 of this
Agreement.
"CONSENTS" means all approvals, orders or consents of or filings with
any Governmental Authority or any third party required to be obtained
or made by the Vendor in connection with the execution, delivery and
performance of this Agreement or any other documents and agreements to
be delivered under this Agreement or the performance of the Vendor's
obligations under this Agreement or any other documents and agreements
to be delivered under this Agreement.
"CONTRACTS" means all contracts, agreements, leases, licences and
similar instruments relating to the operation of the Business, other
than any agreement which is an Excluded Asset.
"EFFECTIVE TIME" means 11:59 p.m. on the day prior to the Closing
Date, which for greater certainty is prior to both the Closing under a
share purchase agreement dated the date hereof between the Vendor and
3064535 Nova Scotia Company ("Sun Gro Nova Scotia") and the effective
time of the amalgamation of the Purchaser and Sun Gro Nova Scotia.
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"EXCLUDED ASSETS" means the Shares, all of the issued and outstanding
shares of 3064535 Nova Scotia Company, the tax sharing agreement
between the Vendor and Xxxxx dated June 30, 1993, the Special
Receivables (defined in the Acquisition Agreement dated March 18, 2002
between the parties among others) and the business radio systems
assets used in the operation of the Business.
"GAAP" means at any time, accounting principles generally accepted in
Canada as set out in the Handbook of the Canadian Institute of
Chartered Accountants, at the relevant time applied for each period on
a basis consistent with past periods.
"GOVERNMENTAL AUTHORITY" means any government, regulatory authority,
governmental department, agency, commission, board, tribunal, crown
corporation, or court or other law, rule or regulation-making entity
having jurisdiction on behalf of any nation, or province or state or
other subdivision thereof or any municipality, district or other
subdivision thereof.
"LAW" means any and all applicable laws in effect on the Closing Date
including all statutes, codes, ordinances, decrees, rules,
regulations, municipal by-laws, judicial or arbitral or administrative
or ministerial or departmental or regulatory judgments, orders,
decisions, ruling or awards, and general principals of common and
civil law and equity, legally binding on or affecting the Person
referred to in the context in which the word is used.
"LIEN" means any mortgage, pledge, security interest, encumbrance,
lien, adverse claim or other charge of any kind including any
agreement to grant any of the foregoing, any conditional sale or other
title retention agreement, any lease in the nature thereof, and the
filing of or agreement to file any financing statement under the
applicable legislation of any jurisdiction in connection with any of
the foregoing.
"MATERIAL ADVERSE EFFECT" means any material adverse effect upon, or
material adverse change in the operation of, the Business.
"NON-ASSIGNABLE RIGHTS" has the meaning set out in Section 2.7 of this
Agreement.
"PERMITS" means all permits, licences, consents, orders,
authorizations, directions, approvals, privileges, waivers,
exemptions, certificates, rulings or other concessions, granted by or
entered into with any Governmental Authority, or otherwise held by the
Vendor, and which relate to the operation of the Business.
"PERMITTED ENCUMBRANCES" means Liens that, individually or in
combination, would not have a Material Adverse Effect or would not
have a Material Adverse Effect on the value to the Purchaser of, or
the ability of the Purchaser to use, the Purchased Assets, or Liens
for taxes not yet due.
"PERSON" means an individual, sole proprietorship, partnership,
unincorporated association, unincorporated syndicate, unincorporated
organization, trust, body corporate, Governmental Authority, and a
natural person in such person's capacity as trustee, executor,
administrator or other legal representative.
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"PURCHASE PRICE" means the price for the Purchased Assets as specified
in Section 2.2 of this Agreement.
"PURCHASED ASSETS" means all of the Vendor's right, title and interest
in, to and under the Vendor's property and assets used in connection
with or necessary for the operation of the Business, including,
without limitation, all intangible assets such as trademarks, brand
names, trade secrets, supply chain components, mix "recipes" and other
manufacturing know-how, customer lists, distribution rights, marketing
and manufacturing process intangibles and all tangible assets
including, without limitation, cash, accounts receivable, inventory,
raw materials, real property, manufacturing plant and equipment,
office equipment, Contracts and Permits, other than the Excluded
Assets.
"SHARES" has the meaning set out in recital A of this Agreement.
1.2 INTERPRETATION. Whenever the singular or the masculine is used herein the
same will be deemed to include the plural or the feminine or the body politic or
corporate where the context so require.
1.3 INCLUDING. For all purposes of this Agreement, except as otherwise expressly
provided or as the context otherwise requires the word including, when following
any general term or statement, is not to be construed as limiting the general
term or statement to the specific items or matters set forth or to similar items
or matters, but rather as permitting the general term or statement to refer to
all other items of matters that could reasonably fall within the broadest
possible scope of the general term or statement.
1.4 HEADINGS. The headings of this Agreement are inserted for convenience only
and will not affect the construction or interpretation hereof.
1.5 ACCOUNTING TERMS. All accounting terms not defined in this Agreement will
have those meanings ascribed to them in accordance with GAAP.
1.6 CURRENCY. Any reference to any dollar amount or sum will be a reference to a
Canadian dollar amount or sum unless otherwise indicated.
1.7 SCHEDULES. The schedules hereto form part of this Agreement and will consist
of:
Schedule "A" Purchase Price Allocation
Schedule "B" Secured Promissory Note
Schedule "C" Consents
ARTICLE 2
PURCHASE OF ASSETS
2.1 PURCHASE AND SALE. The Vendor hereby sells, assigns and transfers the
Purchased Assets to the Purchaser free and clear of all Liens except Permitted
Encumbrances, and the Purchaser hereby purchases the Purchased Assets as and
from the Effective Time for the Purchase Price, upon and subject to the terms
and conditions herein set forth.
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2.2 PURCHASE PRICE. Subject to the provisions of this Agreement, the purchase
price for the Purchased Assets will be the aggregate fair market value of the
Purchased Assets, which is $117,396,000 (the "PURCHASE PRICE"), which will be
allocated among the Purchased Assets in accordance with Schedule A hereto.
2.3 PAYMENT OF THE PURCHASE PRICE. The Purchase Price shall be paid and
satisfied by the Purchaser at Closing as follows:
(a) by the issuance to the Vendor of a promissory note in the
amount of $111,578,000 (the "ASSET PURCHASE NOTE") in
substantially the form set out in Schedule D hereto; and
(b) by the assumption of the Assumed Obligations.
2.4 TAXES. The Vendor will be responsible for and will pay when due any sales
taxes, social services taxes, conveyancing taxes, goods and services taxes or
similar taxes and registration fees payable in respect of the sale and transfer
of the Purchased Assets.
2.5 U.S. TAX FILINGS. The Purchaser and the Vendor recognize their mutual
obligations pursuant to Section 1060 of the Internal Revenue Code (the "CODE")
to timely file IRS Form 8594 (the "ASSET ACQUISITION STATEMENT") with each of
their respective federal income tax returns. Accordingly, the Purchaser and the
Vendor agree: (A) that the purchase price allocated to the Purchased Assets as
set out in Schedule A shall be the allocation for the parties for all purposes
(including accounting and tax purposes) and (B) to cooperate in the preparation
of the Asset Acquisition Statement for timely filing in each of their respective
federal income tax returns. Unless otherwise prohibited by law, all foreign,
federal, state and local income tax returns filed by Purchaser and the Vendor
shall be filed consistently with the allocations made pursuant to Schedule A.
2.6 TRANSFER AND DELIVERY OF PURCHASED ASSETS. At or (in reliance on Section
10.4 hereof) following the Closing the Vendor shall execute and deliver to the
Purchaser all such bills of sale, assignments, instruments of transfer, deeds,
assurances, consents and other documents as shall be necessary to effectively
transfer to the Purchaser all the Vendor's right, title and interest in, to and
under, or in respect of, the Purchased Assets. At the Closing the Vendor shall
deliver up to the Purchaser possession of the Purchased Assets, free and clear
of all Liens (other than Permitted Encumbrances) and shall permit the Purchaser
to make, and shall fully co-operate with the Purchaser in the making of, such
registrations, recordings and filings with public authorities as may be required
in connection with the transfer of ownership to the Purchaser of the Purchased
Assets. If any of the Purchased Assets, come into the possession of the Vendor
or any of its Affiliates after the Closing Date, or are not effectively
transferred or assigned to the Purchaser on the Closing Date then the Vendor or
any of its Affiliates shall hold any such Purchased Assets as bare trustee in
trust for and at the sole cost of the Purchaser until possession thereof has
been delivered by Vendor, or its Affiliate, as applicable and they have been
effectively transferred to the Purchaser.
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2.7 ASSIGNMENT OF CONTRACTS AND PERMITS. Nothing in this Agreement shall be
construed as an assignment of, or an attempt to assign to the Purchaser, any
Contract or Permit which, as a matter of law or by its terms, is (i) not
assignable, or (ii) not assignable without the approval or consent of the issuer
thereof or the other party or parties thereto, without first obtaining such
approval or consent (collectively "NON-ASSIGNABLE RIGHTS"). In connection with
such Non-Assignable Rights, and without prejudice to the rights of the
Purchaser, the Vendor shall, at the request of the Purchaser:
(a) maintain or cause to be maintained the existence of the holder
of the Non-Assignable Rights and hold or cause the holder to
hold the Non-Assignable Rights in trust for the Purchaser to
the fullest extent lawful;
(b) comply or cause the holder of the Non-Assignable Rights to
comply with the terms and provisions of the Non-Assignable
Rights as agent for, and on behalf of, the Purchaser to the
fullest extent lawful;
(c) apply for and use all reasonable commercial efforts to obtain
all consents or approvals contemplated by the Contracts or
Permits, in a form satisfactory to the Purchaser acting
reasonably, provided that nothing herein shall require the
Vendor to make any payment to any other party to any of the
Contracts;
(d) co-operate with the Purchaser in any reasonable and lawful
arrangements designed to provide the benefits of such
Non-Assignable Rights to the Purchaser, including holding any
such Non-Assignable Rights in trust for the Purchaser or
acting as agent for the Purchaser;
(e) enforce any rights of the Vendor arising from such
Non-Assignable Rights against the issuer thereof or the other
party or parties thereto;
(f) take all such actions and do, or cause to be done, all such
things at the request of the Purchaser as shall reasonably be
necessary and proper in order that the value of any
Non-Assignable Rights shall be preserved and shall enure to
the benefit of the Purchaser; and
(g) pay over to the Purchaser, all monies collected by or paid to
the Vendor in respect of such Non-Assignable Rights.
The Purchaser shall indemnify the Vendor and save the Vendor harmless from any
claims in respect of any Non-Assignable Rights in connection with or arising as
a result of any action of the Vendor taken pursuant to the foregoing. If the
Vendor is unable to lawfully provide the benefit of any Permit or Contract to
the Purchaser, it shall not, at any time without the consent of the Purchaser,
use such Permit or Contract for its own purposes or assign or provide the
benefit of such Permit or Contract to any other party.
2.8 TAXABLE CANADIAN PROPERTY. Each of the Vendor and Xxxxx jointly and
severally hereby represent and warrant to the Purchaser and acknowledge and
confirm that the Purchaser is relying upon this representation and warranty in
connection with the purchase by the Purchaser of the Purchased Assets, that none
of the Purchased Assets constitute "taxable Canadian property" for the purpose
of the Act or "taxable Quebec property" for the purposes of the Taxation Act
(Quebec).
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ARTICLE 3
ASSUMPTION OF OBLIGATIONS AND LIABILITIES
3.1 ASSUMED OBLIGATIONS. Upon Closing, the Purchaser will assume and be
responsible for the Assumed Obligations. The Purchaser will indemnify the Vendor
and save the Vendor harmless from and against any claims, demands, actions,
causes of action, loss, damage, cost or expense whatsoever, including legal
fees, suffered or incurred by the Vendor by reason of the failure of the
Purchaser to pay or discharge any of the Assumed Obligations.
3.2 BULK SALES LEGISLATION. The Vendor and Xxxxx shall jointly and severally
indemnify and hold harmless the Purchaser from and against any and all Claims
arising from, relating to or associated with the failure of the Vendor to comply
with the provisions of any bulk sales legislation and any similar applicable
legal requirements in connection with the sale of the Purchased Assets to the
Purchaser pursuant to the terms hereof.
ARTICLE 4
COVENANTS OF THE VENDOR
4.1 OBTAIN CONSENTS. The Vendor covenants and agrees with the Purchaser that
together with the Purchaser it will use all commercially reasonable efforts to
obtain the Consents.
ARTICLE 5
COVENANTS OF THE PURCHASER
5.1 OBTAIN CONSENTS. The Purchaser covenants and agrees with the Vendor that
together with the Vendor it will use all commercially reasonable efforts to
obtain the Consents.
ARTICLE 6
OPERATIONS UNTIL CLOSING
6.1 CONDUCT OF BUSINESS. Except as otherwise specifically provided in this
Agreement, the Vendor covenants and agrees with the Purchaser that from the date
of this Agreement up to the Closing on the Closing Date:
(a) ORDINARY COURSE. The Business will be carried on and conducted
in the ordinary course, and the Vendor will use its
commercially reasonable efforts to preserve intact (except for
sales of inventory in the ordinary course) the Purchased
Assets, including, without limitation, the goodwill relating
thereto.
(b) MAINTAIN GOOD RELATIONS. The Vendor shall use all reasonable
commercial efforts to maintain good relations (including
retaining the services of or business relations with) with the
employees, customers and suppliers of the Vendor.
(c) LIMITATION ON AGREEMENTS. Unless in the ordinary course of the
Business, no agreement or transaction relating to the
Purchased Assets will be entered into except with the
Purchaser's prior written approval, such approval not to be
unreasonably withheld.
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(d) INSURANCE. The Vendor will maintain in full force and effect
its current insurance coverage in respect of the Purchased
Assets and will pay all premiums in connection therewith; the
proceeds of any such insurance (other than such claims
described in Sections 3.3 and 10.2 of the Acquisition
Agreement, dated March 18, 2002, among the Parties and Sun Gro
Horticulture Income Fund) which will become payable as a
result of any physical loss or damage to the Purchased Assets
or any part thereof after the date hereof until the Closing
Date will be deemed to be included as part of the Purchased
Assets and the parties hereto agree, subject to Subsection
7.1(b), that any such insurance proceeds or the right to
recover the same will be accepted by the Purchaser (without
further claim by the Purchaser against the Vendor hereunder)
in replacement for any of the Purchased Assets or any part
thereof lost, destroyed or damaged by any of the causes in
respect of which the policies of insurance are maintained.
ARTICLE 7
CONDITIONS PRECEDENT
7.1 CONDITIONS OF PURCHASER. The obligation of the Purchaser to consummate the
transactions herein contemplated at the Closing is subject to the fulfilment of
each of the following conditions:
(a) MATERIAL ADVERSE CHANGE. There will not have occurred any
event or circumstance or loss or damage to any of the
Purchased Assets which alone or in combination with other such
events, losses and damages, is material to the value to the
Purchaser of the Purchased Assets taken as a whole or has a
Material Adverse Effect.
(b) LITIGATION. There will exist no actions, suits, judgments,
litigation, investigations or proceedings outstanding, pending
or threatened in writing against or affecting the Purchaser or
the Vendor in connection with the transactions contemplated
hereby.
(c) CONSENTS. All of the material Consents (which the Vendor
represents are described in Schedule C hereto), shall have
been obtained.
The foregoing conditions are for the exclusive benefit of the Purchaser and may
be waived in whole or in part by the Purchaser at any time. A waiver will be
binding only if it is in writing. If any of the conditions in this Section are
not fulfilled or waived, the Purchaser may by notice in writing terminate this
Agreement without prejudice to any claim it may have against the Vendor for any
wilful or negligent breach of any material representation, warranty, covenant or
agreement.
7.2 CONDITIONS OF THE VENDOR. The obligation of the Vendor to consummate the
transactions herein contemplated at the Closing is subject to the fulfilment of
each of the following conditions:
(a) LITIGATION. There will exist no actions, suits, judgments,
litigation, investigations or proceedings outstanding, pending
or threatened against or affecting the Purchaser or the Vendor
in connection with the transactions contemplated hereby.
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(b) CONSENTS. All of the material Consents as described in
Schedule C hereto, shall have been obtained.
The foregoing conditions are for the exclusive benefit of the Vendor and may be
waived in whole or in part by the Vendor at any time. A waiver will be binding
only if it is in writing. If any of the conditions in this Section are not
fulfilled or waived, the Vendor may by notice in writing terminate this
Agreement without prejudice to any claim it may have against the Purchaser for
any wilful or negligent breach of any material representation, warranty,
covenant or agreement.
ARTICLE 8
CLOSING TRANSACTIONS
8.1 CLOSING. The Closing will take place at 0000 - 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, X.X. X0X 0X0, on March 26, 2002 (the "CLOSING DATE").
8.2 DELIVERIES. At the Closing:
(a) The Vendor will deliver to the Purchaser:
(i) all deeds, bills of sale, transfers and assignments,
including the Consents listed in Schedule C, in form
and substance acceptable to the Purchaser as the
Purchaser may reasonably require and as are necessary
to effectively transfer and convey title to the
Purchased Assets to the Purchaser free and clear of
all Liens except for Permitted Encumbrances and
except as otherwise provided in this Agreement;
(ii) copies of resolutions of the board of directors and
shareholders of the Vendor authorizing the execution
and delivery of this Agreement and the consummation
of the transactions contemplated hereby;
(iii) all other documents and instruments as the Purchaser
may reasonably require to complete the purchase of
the Purchased Assets on the terms set out in this
Agreement; and
(iv) a non-foreign affidavit acknowledging that the Vendor
is not a foreign person within the meaning of Section
1445 of the Code; and
(b) the Purchaser will deliver to the Vendor:
(i) the Asset Purchase Note;
(ii) such documents as the Vendor may reasonably require
in form and substance acceptable to the Vendor and
the Purchaser each acting reasonably with respect to
the assumption by the Purchaser from and after the
Closing Date of the Assumed Obligations; and
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(iii) all other documents and instruments as the Vendor may
reasonably require to complete the sale of the
Purchased Assets on the terms set out in this
Agreement.
8.3 ACTIONS TO SATISFY CLOSING CONDITIONS. Each of the parties agrees to take
all such actions as are within its power to control, and to use its reasonable
commercial efforts to cause other actions to be taken which are not within its
power to control, so as to ensure compliance with each of the conditions and
covenants set forth in Articles 7 and 8 which are for the benefit of the other
party.
ARTICLE 9
POST-CLOSING EVENTS
9.1 EMPLOYEES. The Vendor shall provide notice of termination and terminate all
those employees and terminate the contracts of all those contractors
(collectively, the "EMPLOYEES") who are employed or contracted in connection
with the operation of the Business as at the Closing Date. The Purchaser will
cause Sun Gro Horticulture Processing Inc. and Sun Gro Horticulture Distribution
Inc., as the case may be, to offer employment to, or contracts with, all of the
Employees on terms and conditions that are the same, in all material respects,
as the terms and conditions of their employment with the Vendor as of the
Closing Date. The Vendor shall take all steps necessary to ensure that the
Employees continue to qualify for and receive all employee benefits, including
tax advantaged employee benefits, that they received prior to the Closing. The
Vendor and Xxxxx shall jointly and severally indemnify and save harmless the
Purchaser, the Purchaser's subsidiaries and their shareholders, directors,
officers, employees, agents and representatives (the "PURCHASER INDEMNIFIED
Parties") from and against all claims, demands, suits, actions, causes of
action, loss, damage, cost or expense whatsoever, including legal fees, which
may be brought against any of the Purchaser Indemnified Parties by any such
Employee arising out of or in connection with: (i) events or circumstances
arising prior to the Closing Date; and (ii) the termination by the Vendor of any
Employee's employment or contract as of the Closing Date.
9.2 USE OF NAME. Promptly after the Effective Time, the Vendor shall discontinue
the use of the name "Sun Gro Horticulture".
ARTICLE 10
MISCELLANEOUS
10.1 INDEMNIFICATION FOR BREACH OF SECTION 2.8. Each of the Vendor and Xxxxx
covenants and agrees with the Purchaser to indemnify and save harmless, on an
after-tax basis, the Purchaser, effective as and from the Effective Time, from
and against all claims which may be made or brought against the Purchaser or
which it may suffer or incur, directly or indirectly as a result of or in
connection with any breach of the representation and warranty contained in
section 2.8.
10.2 NOTICES. All notices, requests, demands or directions to one party to this
Agreement by another will be in writing and hand delivered, couriered or sent by
facsimile transmission to the party to which it is to be given as follows:
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To the Vendor and Xxxxx:
00000 Xxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
With a copy to Paul, Hastings, Xxxxxxxx & Xxxxxx LLP at:
000 Xxxx Xxxxxx Xxxxx,
00xx Xxxxx
Xxxxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
To the Purchaser:
Sun Gro Horticulture Canada Ltd.
00000 X.X. 00
Xxxx Xxxxx, XX X0X 0X0
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
With a copy to Xxxxxx Xxxxxx Gervais LLP at:
0000 Xxxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Fax No.: (000) 000-0000
Attention: Nigel P.H. Cave
or to such other address as may be specified by one party to the other in a
notice given in the manner herein provided. Any notice, request, demand or
direction given in such manner will be deemed to have been received by the party
to whom it is given, in the case of delivery by hand, or courier when delivered,
and in the case of delivery by facsimile transmission, when a legible facsimile
is received.
10.3 RISK OF LOSS. Until Closing the Purchased Assets will be and remain at the
risk of the Vendor.
10.4 TIME OF THE ESSENCE. Time will be of the essence hereof.
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10.5 FURTHER ASSURANCES. The parties hereto will with reasonable diligence
provide such further documents or instruments required by another party and will
do or cause to be done all such things as may be reasonably necessary or
desirable to effect the purpose of this Agreement.
10.6 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of British Columbia and the laws of Canada applicable
therein and each of the parties hereto hereby attorns the jurisdiction of the
Courts of British Columbia.
10.7 PUBLIC ANNOUNCEMENTS. Except as required by law or regulatory authority and
as may be required in order to obtain the Consents, no announcements or
disclosures concerning the transactions under this Agreement may be made prior
to Closing by any party, its employees, agents or representatives to the public,
suppliers, customers or employees of the Business unless previously approved by
the Purchaser and the Vendor or expressly permitted under this Agreement.
10.8 NO ASSIGNMENT WITHOUT CONSENT. Except with the written consent of the other
party, neither the Vendor nor the Purchaser may assign any of their respective
benefits, obligations or liabilities under or in respect of this Agreement.
10.9 ENUREMENT. This Agreement will enure to the benefit of and will be binding
upon the parties hereto and their respective permitted successors and assigns.
10.10 ENTIRE AGREEMENT. The provisions of this Agreement constitute the entire
agreement between the parties with respect to the subject matter hereof and
supersede all previous communications, representations, and agreements, whether
oral or written, between the parties with respect to the subject matter hereof,
there being no representations, warranties, terms, conditions, undertakings, or
collateral agreements (express, implied, or statutory), between the parties
other than as expressly set forth or referred to in this Agreement.
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10.11 COUNTERPART EXECUTION. This Agreement may be executed in any number of
counterparts, each of which when delivered shall be deemed to be an original and
all of which together shall constitute one and the same document. A signed
facsimile or telecopied copy of this Agreement shall be effectual and valid
proof of execution and delivery.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
SUN GRO HORTICULTURE INC.
By:
-----------------------------------
Authorized Signatory
SUN GRO HORTICULTURE CANADA LTD.
By:
-----------------------------------
Authorized Signatory
XXXXX NURSERIES, INC.
By:
-----------------------------------
Authorized Signatory
XXXXX HORTICULTURE, INC.
By:
-----------------------------------
Authorized Signatory
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SERIES B 11 3/4% SENIOR SUBORDINATED NOTES DUE 2005
-----------------------------------
FOURTH SUPPLEMENT TO INDENTURE
DATED AS OF MARCH 26, 2002
------------------------------------
XXXXX NURSERIES, INC.,
AS ISSUER
XXXXX HORTICULTURE, INC.,
ENVIRO-SAFE LABORATORIES, INC.
AND
SUN GRO HORTICULTURE INC.,
AS GUARANTORS,
SUN GRO HORTICULTURE CANADA LTD.,
AS ADDITIONAL GUARANTOR,
AND
THE BANK OF NEW YORK,
AS TRUSTEE
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FOURTH SUPPLEMENT TO INDENTURE
This Fourth Supplement to Indenture is dated as of March 26,
2002 by and among Xxxxx Nurseries, Inc., a California corporation formerly known
as Xxxxx Horticulture, Inc. (the "Company"), Xxxxx Horticulture, Inc., a
Delaware corporation that is the successor by merger to Xxxxx Holdings, Inc.
("Parent"), Sun Gro Horticulture Inc., a Nevada corporation ("Sun Gro-U.S."),
Enviro-Safe Laboratories, Inc., a Florida corporation ("Enviro-Safe"), Sun Gro
Horticulture Canada Ltd., a Nova Scotia limited liability company ("Sun Gro
Canada" and together with Sun Gro-U.S., Enviro-Safe and Parent, the
"Guarantors"), and The Bank of New York, a New York banking corporation (the
"Successor Trustee"), as successor Trustee to IBJ Xxxxxxxx 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 "Fourth Supplement"). Capitalized terms used but not otherwise defined
in this Fourth 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, dated as of June 26, 1998,
the Second Supplement to Indenture, dated as of November 22, 2000 and the Third
Supplement to Indenture dated as of November 28, 2000 (as so amended and
supplemented, the "Indenture"); and
WHEREAS, pursuant to Section 4.19 of the Indenture, a
Subsidiary of the Company meeting certain qualifications described therein is
required to execute and deliver to the Trustee a supplemental indenture pursuant
to which such Subsidiary shall unconditionally guarantee all of the Company's
obligations under the Notes and 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
SUBSIDIARY GUARANTY
Section 1.01 GUARANTY. Sun Gro Canada hereby unconditionally
guarantees all of the Company's obligations under the Notes and the Indenture on
the terms set forth in Article Eleven of the Indenture.
2
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. INSTRUMENTS TO BE READ TOGETHER. This Fourth
Supplement is an indenture supplement to and in implementation of the Indenture,
and the Indenture and this Fourth Supplement shall henceforth be read together.
Section 2.02. CONFIRMATION. The Indenture, as amended and
supplemented by this Fourth Supplement, is in all respects confirmed and
preserved.
Section 2.03. COUNTERPARTS. This Fourth 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 Fourth 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 FOURTH 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 TRUSTEE'S RESPONSIBILITY. In
executing this Fourth 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.
*****
3
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplement to Indenture to be duly executed as of the date first above written.
XXXXX NURSERIES, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
XXXXX HORTICULTURE, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
SUN GRO HORTICULTURE INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
ENVIRO-SAFE LABORATORIES, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
4
SUN GRO HORTICULTURE CANADA LTD.
By: /S/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
Chief Financial Officer and Secretary
THE BANK OF NEW YORK
By: ____________________________________
Name: __________________________________
Its: ___________________________________
5
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SERIES B 11 3/4% SENIOR SUBORDINATED NOTES DUE 2005
-----------------------------------
FIFTH SUPPLEMENT TO INDENTURE
DATED AS OF MARCH 26, 2002
------------------------------------
XXXXX NURSERIES, INC.,
AS ISSUER
XXXXX HORTICULTURE, INC.,
ENVIRO-SAFE LABORATORIES, INC.,
SUN GRO HORTICULTURE INC.
AND
SUN GRO HORTICULTURE CANADA LTD.
AS GUARANTORS,
SUN GRO HOLDINGS INC.,
AS ADDITIONAL GUARANTOR,
AND
THE BANK OF NEW YORK,
AS TRUSTEE
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1
FIFTH SUPPLEMENT TO INDENTURE
This Fifth Supplement to Indenture is dated as of March 26,
2002 by and among Xxxxx Nurseries, Inc., a California corporation formerly known
as Xxxxx Horticulture, Inc. (the "Company"), Xxxxx Horticulture, Inc., a
Delaware corporation that is the successor by merger to Xxxxx Holdings, Inc.
("Parent"), Sun Gro Horticulture Inc., a Nevada corporation ("Sun Gro-U.S."),
Enviro-Safe Laboratories, Inc., a Florida corporation ("Enviro-Safe"), Sun Gro
Horticulture Canada Ltd., a Nova Scotia limited liability company ("Sun Gro
Canada"), Sun Gro Holdings Inc., a Delaware corporation ("SG Holdings" and
together with Sun Gro Canada, Sun Gro-U.S., Enviro-Safe and Parent, the
"Guarantors"), and The Bank of New York, a New York banking corporation (the
"Successor Trustee"), as successor Trustee to IBJ Xxxxxxxx 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 "Fifth Supplement"). Capitalized terms used but not otherwise defined
in this Fifth 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, dated as of June 26, 1998,
the Second Supplement to Indenture, dated as of November 22, 2000, the Third
Supplement to Indenture dated as of November 28, 2000 and the Fourth Supplement
to Indenture dated as of March 26, 2002 (as so amended and supplemented, the
"Indenture"); and
WHEREAS, pursuant to Section 4.19 of the Indenture, a
Subsidiary of the Company meeting certain qualifications described therein is
required to execute and deliver to the Trustee a supplemental indenture pursuant
to which such Subsidiary shall unconditionally guarantee all of the Company's
obligations under the Notes and 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
SUBSIDIARY GUARANTY
Section 1.01 GUARANTY. SG Holdings hereby unconditionally
guarantees all of the Company's obligations under the Notes and the Indenture on
the terms set forth in Article Eleven of the Indenture.
2
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. INSTRUMENTS TO BE READ TOGETHER. This Fifth
Supplement is an indenture supplement to and in implementation of the Indenture,
and the Indenture and this Fifth Supplement shall henceforth be read together.
Section 2.02. CONFIRMATION. The Indenture, as amended and
supplemented by this Fifth Supplement, is in all respects confirmed and
preserved.
Section 2.03. COUNTERPARTS. This Fifth 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 Fifth 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 FIFTH 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 TRUSTEE'S RESPONSIBILITY. In
executing this Fifth 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.
*****
3
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplement to Indenture to be duly executed as of the date first above written.
XXXXX NURSERIES, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
XXXXX HORTICULTURE, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
SUN GRO HORTICULTURE INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
ENVIRO-SAFE LABORATORIES, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
4
SUN GRO HORTICULTURE CANADA LTD.
By: /S/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
Chief Financial Officer and Secretary
SUN GRO HOLDINGS INC.
By: /S/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
President
THE BANK OF NEW YORK
By: ____________________________________
Name: __________________________________
Its: ___________________________________
5
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SERIES B 11 3/4% SENIOR SUBORDINATED NOTES DUE 2005
-----------------------------------
SIXTH SUPPLEMENT TO INDENTURE
DATED AS OF MARCH 26, 2002
------------------------------------
XXXXX NURSERIES, INC.,
AS ISSUER
XXXXX HORTICULTURE, INC.,
ENVIRO-SAFE LABORATORIES, INC.,
SUN GRO HORTICULTURE INC.,
SUN GRO HORTICULTURE CANADA LTD.
AND
SUN GRO HOLDINGS INC.,
AS GUARANTORS,
SUN GRO HORTICULTURE PROCESSING INC.
AND
SUN GRO HORTICULTURE DISTRIBUTION INC.,
AS ADDITIONAL GUARANTORS,
AND
THE BANK OF NEW YORK,
AS TRUSTEE
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1
SIXTH SUPPLEMENT TO INDENTURE
This Sixth Supplement to Indenture is dated as of March 26,
2002 by and among Xxxxx Nurseries, Inc., a California corporation formerly known
as Xxxxx Horticulture, Inc. (the "Company"), Xxxxx Horticulture, Inc., a
Delaware corporation that is the successor by merger to Xxxxx Holdings, Inc.
("Parent"), Sun Gro Horticulture Inc., a Nevada corporation ("Sun Gro-U.S."),
Enviro-Safe Laboratories, Inc., a Florida corporation ("Enviro-Safe"), Sun Gro
Horticulture Canada Ltd., a Nova Scotia limited liability company ("Sun Gro
Canada"), Sun Gro Holdings Inc., a Delaware corporation ("SG Holdings"), Sun Gro
Horticulture Processing Inc., a Delaware corporation ("Processing"), Sun Gro
Horticulture Distribution Inc., a Delaware corporation ("Distribution" and
together with SG Holdings, Processing, Sun Gro Canada, Sun Gro-U.S., Enviro-Safe
and Parent, the "Guarantors"), and The Bank of New York, a New York banking
corporation (the "Successor Trustee"), as successor Trustee to IBJ Xxxxxxxx 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 "Sixth Supplement"). Capitalized terms used but not
otherwise defined in this Sixth 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, dated as of June 26, 1998,
the Second Supplement to Indenture, dated as of November 22, 2000, the Third
Supplement to Indenture dated as of November 28, 2000, the Fourth Supplement to
Indenture dated as of March 26, 2002 and Fifth Supplement to Indenture dated as
of March 26, 2002 (as so amended and supplemented, the "Indenture"); and
WHEREAS, pursuant to Section 4.19 of the Indenture, a
Subsidiary of the Company meeting certain qualifications described therein is
required to execute and deliver to the Trustee a supplemental indenture pursuant
to which such Subsidiary shall unconditionally guarantee all of the Company's
obligations under the Notes and 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:
2
ARTICLE I
SUBSIDIARY GUARANTY
Section 1.01 GUARANTY. Each of Processing and Distribution
hereby unconditionally guarantees all of the Company's obligations under the
Notes and the Indenture on the terms set forth in Article Eleven of the
Indenture.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. INSTRUMENTS TO BE READ TOGETHER. This Sixth
Supplement is an indenture supplement to and in implementation of the Indenture,
and the Indenture and this Sixth Supplement shall henceforth be read together.
Section 2.02. CONFIRMATION. The Indenture, as amended and
supplemented by this Sixth Supplement, is in all respects confirmed and
preserved.
Section 2.03. COUNTERPARTS. This Sixth 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 Sixth 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 SIXTH 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 TRUSTEE'S RESPONSIBILITY. In
executing this Sixth 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.
*****
3
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Supplement to Indenture to be duly executed as of the date first above written.
XXXXX NURSERIES, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
XXXXX HORTICULTURE, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
SUN GRO HORTICULTURE INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
ENVIRO-SAFE LABORATORIES, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
4
SUN GRO HORTICULTURE CANADA LTD.
By: /S/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
Chief Financial Officer and Secretary
SUN GRO HOLDINGS INC.
By: /S/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
President
SUN GRO HORTICULTURE PROCESSING INC.
By: /S/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
President
SUN GRO HORTICULTURE DISTRIBUTION INC.
By: /S/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
President
THE BANK OF NEW YORK
By: ____________________________________
Name: __________________________________
Its: ___________________________________
5
