EXHIBIT 4.6
AMENDED AND RESTATED AGREEMENT AS TO EXPENSES AND LIABILITIES
Amended and Restated Agreement As To Expenses And Liabilities
(this "Agreement"), dated as of October 29, 2003, between EASY GARDENER
PRODUCTS, LTD., a Texas limited partnership (the "Company"), and EASY GARDENER
PRODUCTS TRUST I, a Delaware statutory trust (the "Trust").
WHEREAS, on April 17, 1998, the Trust (then named "U.S. Home &
Garden Trust I") issued its Common Securities (the "Common Securities") to and
received Junior Subordinated Deferrable Interest Debentures (the "Debentures")
from U.S. Home & Garden, Inc., a Delaware corporation ("USHG"), and issued and
sold 9.40% Cumulative Trust Preferred Securities (the "Trust Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of April 17, 1998, as amended in the Second Amended and Restated Trust
Agreement dated as of October 29, 2003 and as the same may be amended from time
to time (the "Trust Agreement");
WHEREAS, pursuant to the Asset Purchase Agreement dated
December 11, 2002, as amended May 23, 2003 and July 31, 2003, USHG transferred
the Common Securities to the Company and the Company assumed all of USHG's
obligations under the Debentures, Indenture relating to the Debentures, Trust
Agreement and Guarantee Agreement described below;
WHEREAS, the Company will directly or indirectly own all of
the Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the promises, covenants
and agreements contained herein, the Company and the Trust hereby agree as
follows:
Section 1.1 Guarantee by the Company.
Subject to the terms and conditions hereof, the Company hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust including, without limitation, any expenses
the Property Trustee may incur relating to the enforcement of the rights of the
holders of the Trust Preferred Securities or the Debentures pursuant to the
Trust Agreement and the Indenture relating to the Debentures, respectively),
other than obligations of the Trust to pay to holders of any Trust Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Trust Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.2 Term of Agreement.
This Agreement shall terminate and be of no further force and
effect upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Trust Preferred Securities (whether
upon redemption, liquidation, exchange or otherwise) and (b) the date on which
there are no Beneficiaries remaining; provided, however, that this Agreement
shall continue to be effective or shall be reinstated, as the case may be, if at
any time any holder of Trust Preferred Securities or any Beneficiary must
restore payment of any sums paid under the Trust Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof by the Company
and Wilmington Trust Company, a Delaware banking corporation, as guarantee
trustee, or under this Agreement, for any reason whatsoever. This Agreement is
continuing, irrevocable, unconditional and absolute and the Company fully,
knowingly and unconditionally waives any right to revoke the guarantee contained
in this Agreement under applicable Texas law or otherwise.
Section 1.3 Waiver of Notice.
The Company hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and the
Company hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 1.4 No Impairment.
The obligations, covenants, agreements and duties of the
Company under this Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the extension of time for the payment by the
Trust of all or any portion of the Obligations or for the performance of any
other obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of
diligence on the part of the Beneficiaries to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Beneficiaries with respect to
the Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings affecting,
the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
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Section 1.5 Enforcement.
A Beneficiary may enforce this Agreement directly against the
Company and the Company waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against the Company.
Section 1.6 Subrogation.
The Company shall be subrogated to all (if any) rights of the
Trust in respect of any amounts paid to the Beneficiaries by the Company under
this Agreement; provided, however, that the Company shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
Section 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Company and shall inure to the benefit of the Beneficiaries.
Section 2.2. Amendment.
So long as there remains any Beneficiary or any Trust
Preferred Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the Trust
Preferred Securities.
Section 2.3. Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by delivering the same
against receipt therefor, by facsimile transmission (confirmed by mail), or by
registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed):
EASY GARDENER PRODUCTS TRUST I
0000 Xxxxxxxx Xxxxxx
Xxxx, Xxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: _____________
EASY GARDENER PRODUCTS, LTD.
0000 Xxxxxxxx Xxxxxx
Xxxx, Xxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: _____________
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Section 2.4. Choice of Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES).
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This Agreement is executed as of the day and year first above
written.
EASY GARDENER PRODUCTS, LTD.
By: EG PRODUCTS MANAGEMENT, L.L.C.,
general partner
By: /S/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager/Organizer
EASY GARDENER PRODUCTS TRUST I
By: /S/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: not in his or her individual capacity
but solely as Administrative Trustee
[SIGNATURE PAGE TO AMENDED AND RESTATED AGREEMENT AS TO EXPENSES
AND LIABILITIES]
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