Exhibit 10.1
LIMITED WAIVER TO LOAN AND SECURITY AGREEMENT
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This LIMITED WAIVER TO LOAN AND SECURITY AGREEMENT (this "WAIVER") dated as
of June 21, 2007 is by and among Xxxxx Nurseries, Inc., a California
corporation, the parties hereto as lenders (each individually, a "Lender" and
collectively, "Lenders" as hereinafter further defined) and Bank of America,
N.A., in its capacity as agent for Lenders (in such capacity, "Agent").
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to them in the Loan Agreement (defined below).
R E C I T A L S:
WHEREAS, Borrower, the Agent and the Lenders have entered into that certain
Loan and Security Agreement dated as of January 18, 2007 (as amended, the "LOAN
AGREEMENT"); and
WHEREAS, Borrower, Agent and Lenders have agreed to extend the date for
providing unaudited financial statements and waive certain Events of Default
upon the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1 LIMITED WAIVER TO THE LOAN AGREEMENT. Borrower acknowledges that a
certain Event of Default exists under Section 11.1 of the Loan Agreement as a
result of Borrower's failure to provide notice of default under the Indenture
for failure to provide the unaudited financial statements for the fiscal quarter
ending March 31, 2007 (and related public filings) as required by Section
10.1.3(c) of the Loan Agreement (the "Specified Event of Default"). Immediately
upon the satisfaction of each of the conditions precedent set forth in Section 2
below, the Agent and Required Lenders hereby waive the Specified Event of
Default; PROVIDED, that Borrower shall deliver the unaudited financial
statements for the fiscal quarter ending March 31, 2007 (and all related public
filings) required by the Indenture and cure any related defaults thereunder by
no later than July 20, 2007, the failure of which shall cause such waiver to be
terminated and result in such Specified Event of Default continuing to exist
under the Loan Agreement. The foregoing is a limited waiver and shall not
constitute a waiver of any other Default or Event of Default that may exist or
arise or constitute a waiver or modification to any other term or condition set
forth in the Loan Agreement.
Section 2 CONDITIONS TO EFFECTIVENESS. The effectiveness of the waiver set
forth in SECTION 1 above is subject to the satisfaction of each of the following
conditions:
(a) Agent shall have received a duly executed counterpart of this
Waiver from Borrower and the Required Lenders;
(b) Agent shall have received a reaffirmation from Parent of its
Guaranty; and
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(c) In consideration of the waiver provided herein, Agent shall have
received, for the ratable benefit of the Lenders signing this Waiver, a fee
in the amount of $25,000 which fee shall be earned in full and payable on
the date hereof.
Section 3 REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower represents,
warrants and covenants to Agent and Lenders, upon the effectiveness of this
Waiver that:
(a) NO DEFAULT; ETC. No Default or Event of Default has occurred and
is continuing after giving effect to this Waiver or would result from the
execution or delivery of this Waiver or the consummation of the
transactions contemplated hereby.
(b) CORPORATE POWER AND AUTHORITY; AUTHORIZATION. Borrower has the
power and authority to execute and deliver this Waiver.
(c) EXECUTION AND DELIVERY. Borrower has duly executed and delivered
this Waiver.
(d) ENFORCEABILITY. This Waiver constitutes the legal, valid and
binding obligations of Borrower, enforceable against Borrower in accordance
with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' right generally, and by general principles of
equity.
(e) INDENTURE NOTICE. Borrower has not received any default notices
under its Indenture in respect of its 10.25% Senior Notes due 2011 dated as
of September 30, 2003, between Xxxxx Nurseries, Inc., Xxxxx Horticulture,
Inc., the Subsidiary Guarantors named therein and the Bank of New York, as
Trustee.
Section 4 MISCELLANEOUS.
(a) EFFECT; RATIFICATION. Borrower acknowledges that all of the
reasonable legal expenses incurred by Agent in connection herewith shall be
reimbursable under SECTION 3.4 of the Loan Agreement. The waiver set forth
herein is effective solely for the purposes set forth herein and shall be
limited precisely as written, and shall not be deemed to (i) be a consent
to any amendment, waiver or modification of any other term or condition of
any Loan Document or (ii) prejudice any right or rights that any Lender may
now have or may have in the future under or in connection with any Loan
Document. This Waiver shall be construed in connection with and as part of
the Loan Documents and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Loan Documents, except as herein
amended are hereby ratified and confirmed and shall remain in full force
and effect.
(b) COUNTERPARTS; ETC. This Waiver may be executed in any number of
counterparts, each such counterpart constituting an original but all
together one and the same instrument. Delivery of an executed counterpart
of this Waiver by fax shall have the same force and effect as the delivery
of an original executed counterpart of this Waiver. Any party delivering an
executed counterpart of this Waiver by fax shall also deliver an original
executed counterpart, but the failure to do so shall not affect the
validity, enforceability or binding effect of this Waiver.
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(c) GOVERNING LAW. This Waiver shall be deemed a Loan Document and
shall be governed by, and construed and interpreted in accordance with the
internal laws of the State of New York but excluding any principles of
conflicts of law.
(d) REAFFIRMATION. Parent hereby reaffirms all of its obligations as a
guarantor of the Obligations pursuant to its Guaranty dated as of January
18, 2007.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, Agent, Lenders and Borrower have caused this Limited
Waiver to Loan and Security Agreement to be duly executed as of the day and year
first above written.
BORROWER:
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XXXXX NURSERIES, INC.
By:/S/ XXXXXXX XXXXXXXX
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Title: CFO
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Name: XXXXXXX XXXXXXXX
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PARENT:
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XXXXX HORTICULTURE, INC.
By:/S/ XXXXXXX XXXXXXXX
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Title: CFO
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Name: XXXXXXX XXXXXXXX
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AGENT AND LENDERS:
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BANK OF AMERICA, N.A., as Agent and a Lender
By:/S/ XXXXX XXXXX
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Title: VICE PRESIDENT
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Name: XXXXX XXXXX
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PNC BANK, NATIONAL ASSOCIATION, as a Lender
By:/S/ XXXXXXX X. XXXX
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Title: VICE PRESIDENT
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Name: XXXXXXX X. XXXX
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GMAC COMMERCIAL FINANCE LLC, as a Lender
By:/S/ XXXXXX XXXXXXXXXX
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Title: DIRECTOR
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Name: XXXXXX XXXXXXXXXX
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