EXHIBIT 4.5
AMENDED AND RESTATED GUARANTEE AGREEMENT
BETWEEN
EASY GARDENER PRODUCTS, LTD.
(AS GUARANTOR)
AND
WILMINGTON TRUST COMPANY
(AS TRUSTEE)
DATED AS OF
October 29, 2003
CROSS-REFERENCE TABLE*
Section of Trust
Indenture Act of 1939, as amended Section of
Agreement Guarantee
--------------------------------- ----------
310(a)(1)(2) 4.1(a)
310(a)(3)(4)(5) Inapplicable
310(b) 4.1(c), 2.8
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
312(c) 2.1
313 2.3
314(a)(1)(2)(3) 2.4
314(a)(4) 2.5
314(b) Inapplicable
314(c)(1)(2) 2.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 1.1
314(f) 2.1
315(a) 3.1(d), 3.2(a)
315(b) 2.7
315(c) 3.1
315(d) 3.1
315(e) 2.1
316(a)(1)(A) 1.1, 5.4
316(a)(1)(B) 1.1, 2.6
316(a)(2) Inapplicable
316(b) 5.3
316(c) 9.2
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.1(b)
---------------------
* This Cross-Reference Table does not constitute part of the Amended and
Restated Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS........................................................................................... 3
SECTION 1.1 Definitions......................................................................... 3
ARTICLE II. TRUST INDENTURE ACT.................................................................................. 6
SECTION 2.1 Trust Indenture Act; Application.................................................... 6
SECTION 2.2 List of Holders..................................................................... 7
SECTION 2.3 Reports by the Guarantee Trustee.................................................... 7
SECTION 2.4 Periodic Reports to the Guarantee Trustee........................................... 7
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................................... 8
SECTION 2.6 Events of Default; Waiver........................................................... 8
SECTION 2.7 Event of Default; Notice............................................................ 8
SECTION 2.8 Conflicting Interest................................................................ 8
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE.................................................. 9
SECTION 3.1 Powers and Duties of the Guarantee Trustee.......................................... 9
SECTION 3.2 Certain Rights of Guarantee Trustee................................................. 11
SECTION 3.3 Indemnity........................................................................... 13
ARTICLE IV. GUARANTEE TRUSTEE.................................................................................... 13
SECTION 4.1 Guarantee Trustee: Eligibility...................................................... 13
SECTION 4.2 Appointment, Removal and Resignation of the Guarantee Trustee....................... 14
ARTICLE V. GUARANTEE............................................................................................. 15
SECTION 5.1 Guarantee........................................................................... 15
SECTION 5.2 Waiver of Notice and Demand......................................................... 15
SECTION 5.3 Obligations Not Affected............................................................ 15
SECTION 5.4 Rights of Holders................................................................... 16
SECTION 5.5 Guarantee of Payment................................................................ 17
SECTION 5.6 Subrogation......................................................................... 17
SECTION 5.7 Independent Obligations............................................................. 17
ARTICLE VI. COVENANTS AND SUBORDINATION.......................................................................... 18
SECTION 6.1 Subordination....................................................................... 18
SECTION 6.2 Pari Passu Guarantees............................................................... 18
ARTICLE VII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................................ 18
SECTION 7.1 Guarantor May Consolidate, Etc., Only on Certain Terms.............................. 18
SECTION 7.2 Successor Guarantor Substituted..................................................... 19
ARTICLE VIII. TERMINATION........................................................................................ 20
SECTION 8.1 Termination......................................................................... 20
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ARTICLE IX. MISCELLANEOUS........................................................................................ 20
SECTION 9.1 Successors and Assigns.............................................................. 20
SECTION 9.2 Amendments.......................................................................... 20
SECTION 9.3 Notices............................................................................. 21
SECTION 9.4 Benefit............................................................................. 22
SECTION 9.5 Interpretation...................................................................... 22
SECTION 9.6 Governing Law....................................................................... 22
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AMENDED AND RESTATED GUARANTEE AGREEMENT
THIS AMENDED AND RESTATED GUARANTEE AGREEMENT, dated as of
October 29, 2003, is executed and delivered by EASY GARDENER PRODUCTS, LTD., a
Texas limited partnership (the "Guarantor") having its principal office at 0000
Xxxxxxxx Xxxxxx, Xxxx, Xxxxx 00000, and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as trustee (the "Guarantee Trustee"), for the benefit of
the Holders from time to time of the Preferred Securities (as defined herein) of
Easy Gardener Products Trust I, a Delaware statutory trust, the former name of
which was U.S. Home & Garden Trust I (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement,
dated as of April 17, 1998 (the "First Amended Trust Agreement"), among U.S.
Home & Garden Inc. (the "Original Guarantor" or "USHG"), as Depositor,
Wilmington Trust Company as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the administrative trustees named in the First Amended Trust
Agreement and the Holders from time to time of undivided beneficial interests in
the assets of the Trust, the Trust issued $63,250,000 aggregate Liquidation
Amount (as defined in the First Amended Trust Agreement) of its 9.40% Cumulative
Trust Preferred Securities, Liquidation Amount $25 per trust preferred security
(the "Preferred Securities");
WHEREAS, the Preferred Securities were issued by the Trust and
the proceeds thereof, together with the proceeds from the issuance of the
Trust's common securities were used to purchase the USHG Trust Debentures (as
defined in the Amended and Restated Junior Subordinated Indenture) of the
Original Guarantor which was deposited with Wilmington Trust Company, as
Property Trustee under the First Amended Trust Agreement, as trust assets;
WHEREAS, as an incentive for the Holders to purchase the
Preferred Securities, the Original Guarantor entered into a Guarantee Agreement
dated as of April 17, 1998 (the "Initial Guarantee Agreement") pursuant to which
the Original Guarantor irrevocably and unconditionally agreed, to the extent set
forth therein, to pay to the Holders of the Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth therein; and
WHEREAS, pursuant to an Asset Purchase Agreement (the "Asset
Purchase Agreement"), dated December 11, 2002, as amended July 31, 2003 and as
may be further amended from time to time in
a manner which, in the opinion of the Administrative Trustees of the Trust, does
not materially adversely affect the interests of the Holders of the Preferred
Securities, by and between the Guarantor, EYAS International, Inc., a Texas
corporation and affiliate of the Guarantor, Original Guarantor, Easy Gardener,
Inc., a Delaware corporation and wholly-owned subsidiary of Original Guarantor
("EGI"), Ampro Industries, Inc., a Michigan corporation and wholly-owned
subsidiary of Original Guarantor ("Ampro" and together with EGI collectively
referred to as the "Sellers") and Weed Wizard Acquisition Corp., a wholly owned
subsidiary of EGI, the Guarantor agreed to purchase, among other things,
substantially all of the assets and properties of the Sellers and assume and
become responsible for, among other things, all of the Original Guarantor's
obligations under the Original Indenture (as defined in the Amended and Restated
Junior Subordinated Indenture) and the Initial Guarantee Agreement; and
WHEREAS, as the assets and properties of the Sellers to be
sold to the Guarantor pursuant to the term of the Asset Purchase Agreement
comprise, indirectly, on a consolidated basis, substantially all of the
properties and assets of the Original Guarantor; and
WHEREAS, pursuant to a special meeting of the Holders of the
Trust, the requisite Holders voted in favor of an amendment to, among other
documents, the Initial Guarantee Agreement to indicate that the sale by the
Sellers of substantially all of their assets and properties to the Guarantor be
deemed a transfer by the Original Guarantor of the Original Guarantor's
properties and assets substantially as an entirety under Sections 7.1 and 7.2 of
the Initial Guarantee Agreement; and
WHEREAS, upon the closing of the transactions contemplated by
the Asset Purchase Agreement and the assumption by the Guarantor of the
obligations of Original Guarantor, the Original Guarantor will be discharged
from all its obligations under the Original Indenture and the Initial Guarantee
Agreement, including without limitation, the obligation to pay to the Holders of
the Preferred Securities pursuant to the Initial Guarantee Agreement; and
WHEREAS, the parties hereto are amending and restating the
Initial Guarantee Agreement to reflect the Guarantor as the new obligor with
respect to the Guarantee.
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NOW, THEREFORE, in consideration of the requisite vote by the
Holders in favor of the amendments to the Initial Guarantee Agreement and other
good and valuable consideration, the Guarantor hereby executes and delivers this
Amended and Restated Guarantee Agreement and pursuant to Section 5.1 hereof
extends the Guarantee for the benefit of the Holders from time to time of the
Preferred Securities.
ARTICLE I.
DEFINITIONS
SECTION 1.1 Definitions.
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement and the
Indenture (as defined herein), each as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person; provided, however, that an Affiliate
of the Guarantor shall not be deemed to be an Affiliate of the Trust. For
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Ampro" has the meaning specified in the recitals to this
Guarantee Agreement.
"Asset Purchase Agreement" has the meaning specified in the
recitals to this Guarantee Agreement.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Trust.
"EGI" has the meaning specified in the recitals to this
Guarantee Agreement.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee
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Agreement; provided, however, that, except with respect to a default in payment
of any Guarantee Payments, the Guarantor shall have received notice of default
and shall not have cured such default within 90 days after receipt of such
notice.
"First Amended Trust Agreement" has the meaning specified in
the recitals to this Guarantee Agreement.
"Guarantee" has the meaning set forth in Section 5.1.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Trust: (i) any accrued and
unpaid Distributions (as defined in the Trust Agreement) required to be paid on
the Preferred Securities, to the extent the Trust shall have funds on hand
available therefor at such time, (ii) the applicable Redemption Price (as
defined in the Trust Agreement), to the extent the Trust shall have funds on
hand available therefor at such time, and (iii) upon a voluntary or involuntary
termination, winding up or liquidation of the Trust, unless Debentures are
distributed to the Holders, the lesser of (a) the aggregate of the Liquidation
Distribution (as defined in the Trust Agreement) and (b) the amount of assets of
the Trust remaining available for distribution to Holders of Preferred
Securities after satisfaction of liabilities to creditors of the Trust as
required by applicable law.
"Guarantee Trustee" means Wilmington Trust Company, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement, and thereafter means each
such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and
records of the Trust, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
"Indenture" means the Amended and Restated Junior Subordinated
Indenture dated as of October 29, 2003, as supplemented and amended, between the
Guarantor and Wilmington Trust Company, as trustee.
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"Initial Guarantee Agreement" has the meaning specified in the
recitals to this Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by the Holder(s),
voting separately as a class, of more than 50% of the Liquidation Amount of all
then outstanding Preferred Securities issued by the Trust.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman or a Vice Chairman of the board of directors
of such Person or the President or a Vice President of such Person, and by the
Chief Financial Officer, the Secretary or an Assistant Secretary of such Person,
or, with respect to each of the above, persons serving in similar capacities,
and delivered to the Guarantee Trustee. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of
the examination or investigation undertaken by each such officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made
such examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of
each such officer, such condition or covenant has been complied with.
"Original Guarantor" has the meaning specified in the recitals
to this Guarantee Agreement.
"Other Guarantees" means any guarantees similar to the
Guarantee issued, from time to time, by the Guarantor on behalf of holders of
one or more series of preferred securities issued
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by any Easy Gardener Products Trust (as defined in the Indenture) other than the
Trust.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning specified in the
recitals to this Guarantee Agreement.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer of the Corporate Trust Administration of the Guarantee
Trustee and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under Section
4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"USHG" has the meaning specified in the recitals to this
Guarantee Agreement.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of
this Guarantee Agreement limits, qualifies or conflicts with the
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duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 2.2 List of Holders.
(a) The Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee (a) semiannually, on or before January 31 and
July 31 of each year, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders ("List of
Holders") as of a date not more than 15 days prior to the delivery thereof, and
(b) at such other times as the Guarantee Trustee may request in writing, within
30 days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession or
control of the Guarantor and is not identical to a previously supplied list of
Holders or has not otherwise been received by the Guarantee Trustee in its
capacity as such. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee.
Not later than July 31 of each year, (which commenced in the
year beginning January 1, 1998), the Guarantee Trustee shall provide to the
Holders such reports as are required by Section 313 of the Trust Indenture Act,
if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the
Securities and Exchange Commission and the Holders such documents, reports and
information, if any, as required by Section 314 of the Trust Indenture Act and
the compliance certificate required by Section 314 of the Trust Indenture Act,
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
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SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee, on an
annual basis, such evidence of compliance with such conditions precedent, if
any, provided for in this Guarantee Agreement that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) may be
given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the
Preferred Securities may, by vote, on behalf of all the Holders, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Guarantee Agreement, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent therefrom.
SECTION 2.7 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days
after the occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notices of all Events of Default known to the
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice, provided, that, except in the case of a default in the payment of a
Guarantee Payment, the Guarantee Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Guarantee
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Guarantee Trustee shall have
received written notice, or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained written notice,
of such Event of Default.
SECTION 2.8 Conflicting Interest.
The Trust Agreement shall be deemed to be specifically
described in this Guarantee Agreement for the purpose of clause
8
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee shall be held by the
Guarantee Trustee for the benefit of the Holders, and the Guarantee Trustee
shall not transfer this Guarantee to any Person except to a Holder exercising
his or her rights pursuant to Section 5.4(iv) or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its appointment to
act as Successor Guarantee Trustee. The right, title and interest of the
Guarantee Trustee shall automatically vest in any Successor Guarantee Trustee,
upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee for the benefit
of the Holders.
(c) The Guarantee Trustee, before the occurrence
of any Event of Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Guarantee Agreement, and no implied covenant shall be read
into this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6), the Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement
shall be construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
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(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such Events of Default
that may have occurred:
(A) The duties and obligations of the
Guarantee Trustee shall be determined solely by the express
provisions of this Guarantee Agreement, and the Guarantee
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Guarantee Agreement; and
(B) in the absence of bad faith on the
part of the Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee
and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a duty
to examine the same to determine whether or not they conform
to the requirements of this Guarantee Agreement;
(ii) The Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer
of the Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made;
(iii) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less than
a Majority in Liquidation Amount of the Preferred Securities relating
to the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement
shall require the Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any
of its duties or in the
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exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed, sent or presented
by the proper party or parties.
(ii) Any direction or act of the
Guarantor contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officers' Certificate unless otherwise
prescribed herein.
(iii) Whenever, in the administration of
this Guarantee Agreement, the Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking, suffering or
omitting to take any action hereunder, the Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request from the Guarantee
Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult
with legal counsel, and the written advice or opinion of such legal
counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion. Such legal counsel may be legal counsel to
the Guarantor or any of its Affiliates and may be one of its employees.
The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction.
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(v) The Guarantee Trustee shall be
under no obligation to exercise any of the rights or powers vested in
it by this Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the Guarantee Trustee
such adequate security and indemnity as would satisfy a reasonable
person in the position of the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Guarantee
Trustee; provided that, nothing contained in this Section 3.2(a)(v)
shall be taken to relieve the Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due
care by it hereunder.
(viii) Whenever in the administration of
this Guarantee Agreement the Guarantee Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Guarantee Trustee (A) may
request instructions from the Holders, (B) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received, and (C) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement
shall be deemed to impose any duty or obligation on the Guarantee Trustee to
perform any act or acts or exercise any
12
right, power, duty or obligation conferred or imposed on it in any jurisdiction
in which it shall be illegal, or in which the Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and authority.
SECTION 3.3 Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee for,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Guarantee Trustee, arising out of or
in connection with the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
ARTICLE IV.
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee
Trustee which shall:
(i) not be an Affiliate of the
Guarantor; and
(ii) be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000, and shall be a corporation
meeting the requirements of Section 310(a) of the Trust Indenture Act.
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining
authority, then, for the purposes of this Section 4.1(a)(ii) and to the
extent permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published.
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(b) If at any time the Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Guarantee Trustee
and delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder
shall hold office until a Successor Guarantee Trustee shall have been appointed
or until its removal or resignation. The Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
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ARTICLE V.
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full on a subordinated basis to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by or on behalf of the Trust), as and
when due, regardless of any defense, right of set-off or counterclaim which the
Trust may have or assert other than the defense of payment (the "Guarantee").
The Guarantee is a continuing guarantee, and the Guarantor fully, knowingly and
unconditionally waives any right the Guarantor may have to revoke the Guarantee
as to any future transactions under applicable Texas law or otherwise. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Trust to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee 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 release or waiver, by operation of law
or otherwise, of the performance or observance by the Trust of any express or
implied agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the
Trust of all or any portion of the Distributions (other than an extension of
time for payment of Distributions that results from the extension of any
interest payment period on the Debentures
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as provided in the Indenture), Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of
diligence on the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Trust granting indulgence
or extension of any kind;
(d) 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;
(e) any invalidity of, or defect or deficiency
in, the Preferred Securities;
(f) the settlement or compromise of any
obligation guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee on
behalf of the Holders; (iii) the Holders of a Majority in Liquidation Amount of
the Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of this Guarantee Agreement or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement; and (iv) any
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Holder may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee Agreement, without first instituting a
legal proceeding against the Guarantee Trustee, the Trust or any other Person.
SECTION 5.5 Guarantee of Payment.
This Guarantee creates a guarantee of payment and not of
collection. This Guarantee will not be discharged except by payment of the
Guarantee Payments in full (without duplication of amounts theretofore paid by
the Trust) or upon distribution of Debentures to Holders as provided in the
Trust Agreement.
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Trust in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Trust pursuant to section 5.1; provided, however, that the
Guarantor 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 Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee. If any amount
shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and to pay over
such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
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ARTICLE VI.
COVENANTS AND SUBORDINATION
SECTION 6.1 Subordination.
The obligations of the Guarantor under this Guarantee will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Debt and Subordinated Debt (as defined
in the Indenture) in the same manner as Debentures (as defined in the Trust
Agreement).
SECTION 6.2 Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee shall
rank pari passu with the obligations of the Guarantor under all Other
Guarantees.
ARTICLE VII.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1 Guarantor May Consolidate, Etc., Only on Certain Terms.
The Guarantor shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall consolidate with
or merge into the Guarantor or convey, transfer or lease its properties and
assets substantially as an entirety to the Guarantor, unless:
(1) in case the Guarantor shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Guarantor is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Guarantor substantially as an entirety shall be a corporation, partnership or
trust organized and existing under the laws of the United States of America or
any State or the District of Columbia, and shall expressly assume the
Guarantor's obligations under this Guarantee;
(2) immediately after giving effect thereto, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
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(3) such consolidation, merger, conveyance, transfer or lease
is permitted under the Trust Agreement and the Indenture and does not give rise
to any breach or violation of the Trust Agreement or the Indenture; and
(4) the Guarantor has delivered to the Guarantee Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and assumption of the
Guarantor's obligations under this Guarantee Agreement comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Guarantee Trustee, subject to
Section 3.1 hereof, may rely upon such Officers' Certificate and Opinion of
Counsel as conclusive evidence that such transaction complies with this Section
7.1.
(5) Notwithstanding anything in this Guarantee or the Initial
Guarantee Agreement to the contrary, the sale (the "Sale") by USHG's
wholly-owned subsidiaries, EGI and Ampro, of their assets substantially as an
entirety to EGP, as set forth in the Asset Purchase Agreement, shall be deemed
to be a transfer by USHG of USHG's properties and assets substantially as an
entirety under Section 7.1 and under Section 7.2 of this Guarantee and the
Initial Guarantee Agreement.
SECTION 7.2 Successor Guarantor Substituted.
Upon any consolidation or merger by the Guarantor with or into
any other Person, or any conveyance, transfer or lease by the Guarantor of its
properties and assets substantially as an entirety to any Person in accordance
with Section 7.1, the successor Person formed by such consolidation or into
which the Guarantor is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Guarantor under this Guarantee Agreement with the same effect as
if such successor Person had been named as the Guarantor herein; and in the
event of any such conveyance, transfer or lease the Guarantor shall be
discharged from all obligations and covenants under this Guarantee Agreement.
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ARTICLE VIII.
TERMINATION
SECTION 8.1 Termination.
This Guarantee Agreement shall terminate and be of no further
force and effect upon the earliest of (i) full payment of the applicable
Redemption Price of all Preferred Securities, (ii) the distribution of
Debentures to the Holders in exchange for all of the Preferred Securities or
(iii) full payment of the amounts payable in accordance with the Trust Agreement
upon liquidation of the Trust. Notwithstanding the foregoing clauses (i) through
(iii), this Guarantee Agreement will continue to be effective or will be
reinstated if it has been terminated pursuant to one of such clauses (i) through
(iii), as the case may be, if at any time any Holder must restore payment of any
sums paid with respect to Preferred Securities or this Guarantee Agreement.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor (including, without
limitation, the Sale (as defined in Section 7.1 hereof)) that is permitted under
Article VII hereof and Article VIII of the Indenture, the Guarantor shall not
assign its obligations hereunder.
SECTION 9.2 Amendments.
Except with respect to any changes which do not adversely
affect the rights of the Holders in any material respect (in which case no vote
will be required), this Guarantee Agreement may not be amended without the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Preferred Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
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SECTION 9.3 Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address
set forth below or such other address, facsimile number or to the attention of
such other Person as the Guarantor may give notice to the Holders:
Easy Gardener Products, Ltd.
0000 Xxxxxxxx Xxxxxx
Xxxx, Xxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
(b) if given to the Trust, in care of the
Guarantee Trustee, at the Trust's (and the Guarantee Trustee's) address set
forth below or such other address as the Guarantee Trustee on behalf of the
Trust may give notice to the Holders:
Easy Gardener Products, Ltd.
0000 Xxxxxxxx Xxxxxx
Xxxx, Xxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
with a copy to:
Wilmington Trust Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set
forth on the books and records of the Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
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notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 9.4 Benefit.
This Guarantee is solely for the benefit of the Holders and is
not separately transferable from the Preferred Securities.
SECTION 9.5 Interpretation.
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee
Agreement but not defined in the preamble hereto have the respective meanings
assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Guarantee Agreement"
or "this Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement
to Articles and Sections are to Articles and Sections of this Guarantee
Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act
has the same meaning when used in this Guarantee Agreement unless otherwise
defined in this Guarantee Agreement or unless the contest otherwise requires;
(f) a reference to the singular includes the
plural and vice versa; and
(g) the masculine, feminine or neuter genders
used herein shall include the masculine, feminine and neuter genders.
SECTION 9.6 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, EXCEPT THAT THE IMMUNITIES
AND STANDARD OF CARE OF THE GUARANTEE TRUSTEE SHALL BE GOVERNED BY DELAWARE LAW.
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
EASY GARDENER PRODUCTS, LTD.
By: EG PRODUCT MANAGEMENT, L.L.C.,
General Partner
By: /S/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager/Organizer
WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Guarantee Trustee
By: /S/ K. Long
------------
Name: Xxxxxxx Xxxx
Title: Financial Services Officer
ACKNOWLEDGED AND AGREED TO:
U.S. HOME & GARDEN INC.
By: /S/ Xxxxxx Xxxxxx
------------------
Name: Xxxxxx Xxxxxx
Title: CEO
[SIGNATURE PAGE TO AMENDED AND RESTATED GUARANTEE]
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