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EXHIBIT 4.12
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement As To Expenses And Liabilities (this "Agreement"), dated as
of September __, 1998, between AMERICAN COIN MERCHANDISING, INC., a Delaware
corporation (the "Company"), and AMERICAN COIN MERCHANDISING TRUST I, a
Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Junior Subordinated Deferrable Interest Debentures
(the "Debentures") from the Company and to issue and sell Ascending Rate
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 September
_ __, 1998, as the same may be amended from time to time (the "Trust
Agreement");
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 purchase by each holder of the
Trust Preferred Securities, which purchase the Company hereby agrees shall
benefit the Company and which purchase the Company acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Company and the
Trust hereby agree as follows:
ARTICLE I
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, expenses relating to the offering of the
Trust Preferred Securities and 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
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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 Section 2815 of the California Civil Code 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.
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.
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ARTICLE II
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):
AMERICAN COIN MERCHANDISING TRUST I
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
AMERICAN COIN MERCHANDISING, INC.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
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
CALIFORNIA (WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES).
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This Agreement is executed as of the day and year first above written.
AMERICAN COIN MERCHANDISING, INC.
By:
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Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board, Chief
Executive Officer and President
AMERICAN COIN MERCHANDISING TRUST I
By:
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Name: Xxxxxx X. Xxxxx
Title: Administrative Trustee
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