EXHIBIT 4.3
HOLDINGS GUARANTY
This HOLDINGS GUARANTY (this "GUARANTY") is entered into as of
September 30, 2003 by Xxxxx Horticulture, Inc. (the "GUARANTOR"), in favor of
and for the benefit of Deutsche Bank Trust Company Americas, as agent for and
representative of (in such capacity herein called "GUARANTIED PARTY") the
financial institutions ("LENDERS") party to the Credit Agreement referred to
below and any Derivative Counterparties (as hereinafter defined), and in favor
of and for the benefit of the Beneficiaries (as hereinafter defined).
RECITALS
X. Xxxxx Nurseries, Inc., a California corporation
("COMPANY"), Enviro-Safe Laboratories, Inc., a Florida corporation,
("ENVIRO-SAFE") and Xxxxx SGUS Inc. (formerly known as SunGro Horticulture,
Inc.), a Nevada corporation ("SGUS"), as borrowers (the "BORROWERS"), have
entered into that certain Credit Agreement dated as of September 30, 2003 (said
Credit Agreement, as it may hereafter be further amended, restated, supplemented
or otherwise modified from time to time, being the "CREDIT AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined), with the Lenders and Guarantied Party, as agent for Lenders, which
Credit Agreement amends and restates the Existing Credit Agreement.
B. Guarantor has entered into that certain Amended and
Restated Holdings Guaranty dated as of June 26, 1998, as amended to the date
hereof (the "EXISTING HOLDINGS GUARANTY") and Holdings and Guarantied Party
desire to amend and restate the Existing Holdings Guaranty in its entirety as
set forth herein.
C. The Borrowers may from time to time enter, or may from time
to time have entered, into one or more interest rate agreements, currency
agreements and other swap agreements (collectively, the "DERIVATIVE CONTRACTS")
with one or more Persons that are Lenders or Affiliates of Lenders at the time
such Derivative Contracts are entered into (in such capacity, collectively,
"DERIVATIVE COUNTERPARTIES") in accordance with the terms of the Credit
Agreement, and it is desired that the obligations of the Borrowers under the
Derivative Contracts, including without limitation the obligation of the
Borrowers to make payments thereunder in the event of early termination thereof,
together with all obligations of the Borrowers under the Credit Agreement and
the other Credit Documents, be guarantied hereunder.
D. Guarantied Party, Lenders and each Derivative Counterparty
for which Guarantied Party has received the notice required by Section 16 hereof
are sometimes referred to herein as "BENEFICIARIES".
E. The Borrowers are wholly owned Subsidiaries of Guarantor
and thus the Guarantied Obligations (as hereinafter defined) are being incurred
for and will inure to the benefit of Guarantor (which benefits are hereby
acknowledged).
F. It is a condition precedent to the making of the initial
Loans under the Credit Agreement that the Borrowers' obligations thereunder be
guarantied by Guarantor.
G. Guarantor is willing irrevocably and unconditionally to
guaranty such obligations of the Borrowers.
1. GUARANTY. (a) In order to induce Lenders to extend credit
to the Borrowers pursuant to the Credit Agreement and the entry by Derivative
Counterparties into the Derivative Contracts, Guarantor irrevocably and
unconditionally guaranties, as primary obligor and not merely as surety, the due
and punctual payment in full of all Guarantied Obligations (as hereinafter
defined) when the same shall become due, whether at stated maturity, by
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. ss. 362(a)). The term "GUARANTIED OBLIGATIONS" is used herein in
its most comprehensive sense and includes any and all Obligations of the
Borrowers and all obligations of the Borrowers under Derivative Contracts, now
or hereafter made, incurred or created, whether absolute or contingent,
liquidated or unliquidated, whether due or not due, and however arising under or
in connection with the Credit Agreement, the Derivative Contracts, this Guaranty
and the other Credit Documents, including those arising under successive
borrowing transactions under the Credit Agreement which shall either continue
such obligations of the Borrowers or from time to time renew them after they
have been satisfied.
Any interest on any portion of the Guarantied Obligations that
accrues after the commencement of any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of the Borrowers (or, if interest on any portion of the
Guarantied Obligations ceases to accrue by operation of law by reason of the
commencement of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceeding had not been commenced)
shall be included in the Guarantied Obligations because it is the intention of
Guarantor and Guarantied Party that the Guarantied Obligations should be
determined without regard to any rule of law or order that may relieve the
Borrowers of any portion of such Guarantied Obligations.
In the event that all or any portion of the Guarantied
Obligations is paid by the Borrowers, the obligations of Guarantor hereunder
shall continue and remain in full force and effect or be reinstated, as the case
may be, in the event that all or any part of such payment(s) is rescinded or
recovered directly or indirectly from Guarantied Party or any other Beneficiary
as a preference, fraudulent transfer or otherwise, and any such payments that
are so rescinded or recovered shall constitute Guarantied Obligations.
Subject to the other provisions of this Section 1, upon the
failure of the Borrowers to pay any of the Guarantied Obligations when and as
the same shall become due, Guarantor will upon demand pay, or cause to be paid,
in cash, to Guarantied Party for the ratable benefit of Beneficiaries, an amount
equal to the aggregate of the unpaid Guarantied Obligations.
2. GUARANTY ABSOLUTE; CONTINUING GUARANTY. The obligations of
Guarantor hereunder are irrevocable, absolute, independent and unconditional and
shall not be affected by any circumstance which constitutes a legal or equitable
discharge of a guarantor or surety other than payment in full of the Guarantied
Obligations. In furtherance of the foregoing and without limiting the generality
thereof, Guarantor agrees that: (a) this Guaranty is a guaranty of payment when
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due and not of collectibility; (b) Guarantied Party may enforce this Guaranty
upon the occurrence and during the continuance of an Event of Default under the
Credit Agreement or the occurrence of an early termination date or similar event
under any Derivative Contracts notwithstanding the existence of any dispute
between the Borrowers and any Beneficiary with respect to the existence of such
event; (c) the obligations of Guarantor hereunder are independent of the
obligations of the Borrowers under the Credit Documents or the Derivative
Contracts and the obligations of any other guarantor of the obligations of the
Borrowers and a separate action or actions may be brought and prosecuted against
Guarantor whether or not any action is brought against the Borrowers or any of
such other guarantors and whether or not any Borrower is joined in any such
action or actions; and (d) Guarantor's payment of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge
Guarantor's liability for any portion of the Guarantied Obligations that has not
been paid. This Guaranty is a continuing guaranty and shall be binding upon
Guarantor and its successors and assigns, and Guarantor irrevocably waives any
right (including without limitation any such right arising under California
Civil Code Section 2815) to revoke this Guaranty as to future transactions
giving rise to any Guarantied Obligations.
3. ACTIONS BY BENEFICIARIES. Any Beneficiary may from time to
time, without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any limitation, impairment or
discharge of Guarantor's liability hereunder, (a) renew, extend, accelerate or
otherwise change the time, place, manner or terms of payment of the Guarantied
Obligations, (b) settle, compromise, release or discharge, or accept or refuse
any offer of performance with respect to, or substitutions for, the Guarantied
Obligations or any agreement relating thereto and/or subordinate the payment of
the same to the payment of any other obligations, (c) request and accept other
guaranties of the Guarantied Obligations and take and hold security for the
payment of this Guaranty or the Guarantied Obligations, (d) release, exchange,
compromise, subordinate or modify, with or without consideration, any security
for payment of the Guarantied Obligations, any other guaranties of the
Guarantied Obligations, or any other obligation of any Person with respect to
the Guarantied Obligations, (e) enforce and apply any security now or hereafter
held by or for the benefit of any Beneficiary in respect of this Guaranty or the
Guarantied Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that Guarantied Party or the other
Beneficiaries, or any of them, may have against any such security, as Guarantied
Party in its discretion may determine consistent with the Credit Agreement, the
Derivative Contracts and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable,
and (f) exercise any other rights available to Guarantied Party or the other
Beneficiaries, or any of them, under the Credit Documents or the Derivative
Contracts.
4. NO DISCHARGE. This Guaranty and the obligations of
Guarantor hereunder shall be valid and enforceable and shall not be subject to
any limitation, impairment or discharge for any reason (other than payment in
full of the Guarantied Obligations), including without limitation the occurrence
of any of the following, whether or not Guarantor shall have had notice or
knowledge of any of them: (a) any failure to assert or enforce or agreement not
to assert or enforce, or the stay or enjoining, by order of court, by operation
of law or otherwise, of the exercise or enforcement of, any claim or demand or
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any right, power or remedy with respect to the Guarantied Obligations or any
agreement relating thereto, or with respect to any other guaranty of or security
for the payment of the Guarantied Obligations, (b) any waiver or modification
of, or any consent to departure from, any of the terms or provisions of the
Credit Agreement, any of the other Credit Documents, the Derivative Contracts or
any agreement or instrument executed pursuant thereto, or of any other guaranty
or security for the Guarantied Obligations, (c) the Guarantied Obligations, or
any agreement relating thereto, at any time being found to be illegal, invalid
or unenforceable in any respect, (d) the application of payments received from
any source to the payment of indebtedness other than the Guarantied Obligations,
even though Guarantied Party or the other Beneficiaries, or any of them, might
have elected to apply such payment to any part or all of the Guarantied
Obligations, (e) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guarantied Obligations, (f)
any defenses, set-offs or counterclaims which the Borrowers may assert against
Guarantied Party or any Beneficiary in respect of the Guarantied Obligations,
including but not limited to failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, accord and satisfaction and
usury, and (g) any other act or thing or omission, or delay to do any other act
or thing, which may or might in any manner or to any extent vary the risk of
Guarantor as an obligor in respect of the Guarantied Obligations.
5. WAIVERS. Guarantor waives, for the benefit of
Beneficiaries: (a) any right to require Guarantied Party or the other
Beneficiaries, as a condition of payment or performance by Guarantor, to (i)
proceed against the Borrowers, any other guarantor of the Guarantied Obligations
or any other Person, (ii) proceed against or exhaust any security held from the
Borrowers, any other guarantor of the Guarantied Obligations or any other
Person, (iii) proceed against or have resort to any balance of any deposit
account or credit on the books of any Beneficiary in favor of the Borrowers or
any other Person, or (iv) pursue any other remedy in the power of any
Beneficiary; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of the Borrowers including, without
limitation, any defense based on or arising out of the lack of validity or the
unenforceability of the Guarantied Obligations or any agreement or instrument
relating thereto or by reason of the cessation of the liability of the Borrowers
from any cause other than payment in full of the Guarantied Obligations; (c) any
defense based upon any statute or rule of law which provides that the obligation
of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal; (d) any defense based upon Guarantied
Party's or any other Beneficiary's errors or omissions in the administration of
the Guarantied Obligations, except behavior that amounts to bad faith or gross
negligence; (e) (i) any principles or provisions of law, statutory or otherwise,
that are or might be in conflict with the terms of this Guaranty and any legal
or equitable discharge of Guarantor's obligations hereunder to the extent
waivable, (ii) the benefit of any statute of limitations affecting Guarantor's
liability hereunder or the enforcement hereof, (iii) any rights to set-offs,
recoupments and counterclaims, and (iv) promptness, diligence and any
requirement that any Beneficiary protect, secure, perfect or insure any Lien or
any property subject thereto; (f) notices, demands, presentments, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance of this Guaranty, notices of default under the Credit
Agreement, notices of default or early termination under any Derivative Contract
or any agreement or instrument related thereto, notices of any renewal,
extension or modification of the Guarantied Obligations or any agreement related
thereto, notices of any extension of credit to the Borrowers and notices of any
of the matters referred to in Sections 3 and 4 and any right to consent to any
thereof; and (g) to the fullest extent permitted by law, any defenses or
benefits that may be derived from or afforded by law which limit the liability
of or exonerate guarantors or sureties, or which may conflict with the terms of
this Guaranty.
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As used in this paragraph, any reference to "the principal"
includes the Borrowers, and any reference to "the creditor" includes Guarantied
Party and each other Beneficiary. In accordance with Section 2856 of the
California Civil Code Guarantor waives any and all rights and defenses available
to Guarantor by reason of Sections 2787 to 2855, inclusive, of the California
Civil Code, including without limitation any and all rights or defenses
Guarantor or any other guarantor of the Guarantied Obligations may have because
the Guarantied Obligations are secured by real property. This means, among other
things: (1) the creditor may collect from Guarantor without first foreclosing on
any real or personal property collateral pledged by the principal; and (2) if
the creditor forecloses on any real property collateral pledged by the
principal: (A) the amount of the Guarantied Obligations may be reduced only by
the price for which the collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price and (B) the creditor may collect
from Guarantor even if the creditor, by foreclosing on the real property
collateral, has destroyed any right Guarantor may have to collect from the
principal. This is an unconditional and irrevocable waiver of any right and
defenses Guarantor may have because the Guarantied Obligations are secured by
real property. These rights and defenses include, but are not limited to, any
rights and defenses based upon Sections 580d or 726 of the California Code of
Civil Procedure. Guarantor also waives all rights and defenses arising out of an
election of remedies by the creditor, even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for a Guarantied
Obligation, has destroyed Guarantor's rights of subrogation and reimbursement
against the principal by the operation of Section 580d of the Code of Civil
Procedure or otherwise; and even though that election of remedies by the
creditor, such as nonjudicial foreclosure with respect to security for an
obligation of any other guarantor of any of the Guarantied Obligations, has
destroyed Guarantor's rights of contribution against such other guarantor. No
other provision of this Guaranty shall be construed as limiting the generality
of any of the covenants and waivers set forth in this paragraph. As provided
below, this Guaranty shall be governed by, and shall be construed and enforced
in accordance with, the internal laws of the State of New York, without regard
to conflicts of laws principles. This paragraph is included solely out of an
abundance of caution, and shall not be construed to mean that any of the
above-referenced provisions of California law are in any way applicable to this
Guaranty or to any of the Guarantied Obligations.
6. GUARANTOR'S RIGHTS OF SUBROGATION, CONTRIBUTION, ETC.;
SUBORDINATION OF OTHER OBLIGATIONS. Guarantor waives (a) any claim, right or
remedy, direct or indirect, that Guarantor now has or may hereafter have against
the Borrowers or any of their assets in connection with this Guaranty or the
performance by Guarantor of its obligations hereunder, in each case whether such
claim, right or remedy arises in equity, under contract, by statute (including
without limitation under California Civil Code Section 2847, 2848 or 2849),
under common law or otherwise and including without limitation (i) any right of
subrogation, reimbursement or indemnification that Guarantor now has or may
hereafter have against the Borrowers, (ii) any right to enforce, or to
participate in, any claim, right or remedy that any Beneficiary now has or may
hereafter have against the Borrowers, and (iii) any benefit of, and any right to
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participate in, any collateral or security now or hereafter held by any
Beneficiary and (b) any right of contribution Guarantor may have against any
other guarantor of any of the Guarantied Obligations. Guarantor further agrees
that, to the extent the waiver of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification Guarantor may have against the
Borrowers or against any collateral or security, and any rights of contribution
Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights Guarantied Party or the other Beneficiaries may have
against the Borrowers, to all right, title and interest Guarantied Party or the
other Beneficiaries may have in any such collateral or security, and to any
right Guarantied Party or the other Beneficiaries may have against such other
guarantor.
Any indebtedness of the Borrowers now or hereafter held by
Guarantor is subordinated in right of payment to the Guarantied Obligations, and
any such indebtedness of the Borrowers to Guarantor collected or received by
Guarantor after an Event of Default has occurred and is continuing, and any
amount paid to Guarantor on account of any subrogation, reimbursement,
indemnification or contribution rights referred to in the preceding paragraph
when all Guarantied Obligations have not been paid in full, shall be held in
trust for Guarantied Party on behalf of Beneficiaries and shall forthwith be
paid over to Guarantied Party for the benefit of Beneficiaries to be credited
and applied against the Guarantied Obligations.
7. EXPENSES. Guarantor agrees to pay, or cause to be paid, on
demand, and to save Guarantied Party and the other Beneficiaries harmless
against liability for, (i) any and all costs and expenses (including reasonable
fees, costs of settlement and disbursements of counsel) incurred or expended by
Guarantied Party or any other Beneficiary in connection with the enforcement of
or preservation of any rights under this Guaranty and (ii) any and all costs and
expenses (including those arising from rights of indemnification) required to be
paid by Guarantor under the provisions of any other Credit Document.
8. FINANCIAL CONDITION OF THE BORROWERS. No Beneficiary shall
have any obligation, and Guarantor waives any duty on the part of any
Beneficiary, to disclose or discuss with Guarantor its assessment, or
Guarantor's assessment, of the financial condition of the Borrowers or any
matter or fact relating to the business, operations or condition of the
Borrowers. Guarantor has adequate means to obtain information from the Borrowers
on a continuing basis concerning the financial condition of the Borrowers and
their ability to perform their obligations under the Credit Documents and the
Derivative Contracts, and Guarantor assumes the responsibility for being and
keeping informed of the financial condition of the Borrowers and of all
circumstances bearing upon the risk of nonpayment of the Guarantied Obligations.
9. REPRESENTATIONS AND WARRANTIES. Guarantor makes, for the
benefit of Beneficiaries, each of the representations and warranties made in the
Credit Agreement by the Borrowers as to Guarantor, its assets, financial
condition, operations, organization, legal status, business and the Credit
Documents to which it is a party.
10. COVENANTS. Guarantor agrees that, so long as any part of
the Guarantied Obligations shall remain unpaid, any Letter of Credit shall be
outstanding, or any Lender shall have any Commitment or any Derivative
Counterparty shall have any obligation under any Derivative Contract, Guarantor
will, unless Majority Lenders shall otherwise consent in writing, perform or
observe, and cause its Subsidiaries to perform or observe, all of the terms,
covenants and agreements that the Credit Documents state that the Borrowers are
to cause Guarantor and its Subsidiaries to perform or observe.
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11. SET OFF. In addition to any other rights any Beneficiary
may have under law or in equity, if any amount shall at any time be due and
owing by Guarantor to any Beneficiary under this Guaranty, such Beneficiary is
authorized at any time or from time to time, without notice (any such notice
being expressly waived), to set off and to appropriate and to apply any and all
deposits (general or special, including but not limited to indebtedness evidence
by certificates of deposit, whether matured or unmatured) and any other
indebtedness of such Beneficiary owing to Guarantor and any other property of
Guarantor held by a Beneficiary to or for the credit or the account of Guarantor
against and on account of the Guarantied Obligations and liabilities of
Guarantor to any Beneficiary under this Guaranty.
12. AMENDMENTS AND WAIVERS. No amendment, modification,
termination or waiver of any provision of this Guaranty, and no consent to any
departure by Guarantor therefrom, shall in any event be effective without the
written concurrence of Guarantied Party and, in the case of any such amendment
or modification, Guarantor. Any such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given.
Each of the parties hereto hereby agrees that the Existing Holdings Guaranty to
which such person is a party is hereby amended, restated and consolidated as set
forth in this Guaranty and that upon execution and delivery by each of the
parties hereto this Guaranty shall supercede the Existing Holdings Guaranty.
13. MISCELLANEOUS. It is not necessary for Beneficiaries to
inquire into the capacity or powers of Guarantor or the Borrowers or the
officers, directors or any agents acting or purporting to act on behalf of any
of them.
The rights, powers and remedies given to Beneficiaries by this
Guaranty are cumulative and shall be in addition to and independent of all
rights, powers and remedies given to Beneficiaries by virtue of any statute or
rule of law or in any of the Credit Documents or the Derivative Contracts or any
agreement between Guarantor and one or more Beneficiaries or between the
Borrowers and one or more Beneficiaries. Any forbearance or failure to exercise,
and any delay by any Beneficiary in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be
a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.
In case any provision in or obligation under this Guaranty
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF GUARANTOR,
GUARANTIED PARTY AND THE OTHER BENEFICIARIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
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This Guaranty shall inure to the benefit of Beneficiaries and
their respective successors and assigns.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST GUARANTOR ARISING OUT
OF OR RELATING TO THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY
OF THIS GUARANTY GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
GUARANTY. Guarantor agrees that service of all process in any such proceeding in
any such court may be made by registered or certified mail, return receipt
requested, to Guarantor at its address set forth below its signature hereto,
such service being acknowledged by Guarantor to be sufficient for personal
jurisdiction in any action against Guarantor in any such court and to be
otherwise effective and binding service in every respect. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of Guarantied Party or any Beneficiary to bring proceedings
against Guarantor in the courts of any other jurisdiction.
GUARANTOR AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF,
GUARANTIED PARTY EACH AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. GUARANTOR AND, BY
ITS ACCEPTANCE OF THE BENEFITS HEREOF, GUARANTIED PARTY EACH (I) ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR GUARANTOR AND GUARANTIED PARTY TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT GUARANTOR AND GUARANTIED PARTY HAVE
ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS GUARANTY OR ACCEPTING THE
BENEFITS HEREOF, AS THE CASE MAY BE, AND THAT EACH WILL CONTINUE TO RELY ON THIS
WAIVER IN THEIR RELATED FUTURE DEALINGS, AND (II) FURTHER WARRANTS AND
REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS GUARANTY.
In the event of litigation, this Guaranty may be filed as a written consent to a
trial by the court.
14. COUNTERPARTS. This Guaranty may be executed in any number
of counterparts and by the different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
for all purposes; but all such counterparts together shall constitute but one
and the same instrument.
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15. GUARANTIED PARTY AS AGENT.
(a) Guarantied Party has been appointed to act as Guarantied
Party hereunder by Lenders. Guarantied Party shall be obligated, and shall have
the right hereunder, to make demands, to give notices, to exercise or refrain
from exercising any rights, and to take or refrain from taking any action,
solely in accordance with this Guaranty and the Credit Agreement.
(b) Guarantied Party shall at all times be the same Person
that is Agent under the Credit Agreement. Written notice of resignation by Agent
pursuant to Section 10.9 of the Credit Agreement shall also constitute notice of
resignation as Guarantied Party under this Guaranty and appointment of a
successor Agent pursuant to Section 10.9 of the Credit Agreement shall also
constitute appointment of a successor Guarantied Party under this Guaranty. Upon
the acceptance of any appointment as Agent under Section 10.9 of the Credit
Agreement by a successor Agent, that successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Guarantied Party under this Guaranty, and the retiring Guarantied Party
under this Guaranty shall promptly (i) transfer to such successor Guarantied
Party all sums held hereunder, together with all records and other documents
necessary or appropriate in connection with the performance of the duties of the
successor Guarantied Party under this Guaranty, and (ii) take such other actions
as may be necessary or appropriate in connection with the assignment to such
successor Guarantied Party of the rights created hereunder, whereupon such
retiring Guarantied Party shall be discharged from its duties and obligations
under this Guaranty. After any retiring Guarantied Party's resignation hereunder
as Guarantied Party, the provisions of this Guaranty shall inure to its benefits
as to any actions taken or omitted to be taken by it under this Guaranty while
it was Guarantied Party hereunder.
16. NOTICE OF DERIVATIVE CONTRACTS. Guarantied Party shall not
be deemed to have any duty whatsoever with respect to any Derivative
Counterparty until it shall have received written notice in form and substance
satisfactory to Guarantied Party from the Borrowers, Guarantor or the Derivative
Counterparty as to the existence and terms of the applicable Derivative Contract
and agree to be bound by the terms of this Guaranty.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, Guarantor and, solely for purposes of the waiver of
the right to jury trial contained in Section 13, Guarantied Party have caused
this Guaranty to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
XXXXX HORTICULTURE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer,
Secretary and Treasurer
Notice Address: 00000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Agent
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Title: Director
Notice Address: 000 Xxxxx Xxxxxxxxx Plaza
Mail Stop CHI05-2900
Xxxxxxx, XX 00000
S-1
