EXHIBIT 4.8
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement As To Expenses And Liabilities (this "Agreement"),
dated as of ____________, 1998, between U.S. HOME & GARDEN INC., a Delaware
corporation (the "Company"), and U.S. HOME & GARDEN 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
__% 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
__________, 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, 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 Section 2895 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
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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.
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):
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U.S. HOME & GARDEN TRUST I
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
U.S. HOME & GARDEN INC.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
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).
This Agreement is executed as of the day and year first
above written.
U.S. HOME & GARDEN INC.
By:________________________________
Name: Xxxxxx Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
U.S. HOME & GARDEN TRUST I
By:________________________________
Name:
Title: Administrative Trustee
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