LIMITED WAIVER TO LOAN AND SECURITY AGREEMENT
Exhibit
10.53
LIMITED
WAIVER TO LOAN
AND SECURITY AGREEMENT
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]
3
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:
|
|
| XXXXX NURSERIES, INC. | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
| Title: CFO | |
| Name: Xxxxxxx Xxxxxxxx | |
| PARENT: | |
| XXXXX HORTICULTURE, INC. | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
| Title: CFO | |
| Name: Xxxxxxx Xxxxxxxx | |
|
AGENT
AND LENDERS:
|
|
|
BANK
OF AMERICA, N.A., as Agent and a Lender
|
|
| By: /s/ Xxxxx Xxxxx | |
| Title: Vice President | |
|
Name:
Xxxxx
Xxxxx
|
|
| PNC BANK, NATIONAL ASSOCIATION, as a Lender | |
| By: /s/ Xxxxxxx Xxxx | |
| Title: Vice President | |
|
Name: Xxxxxxx
Xxxx
|
|
| GMAC COMMERCIAL FINANCE LLC, as a Lender | |
| By: /s/ Xxxxxx Xxxxxxxxxx | |
| Title: Director | |
| Name: Xxxxxx Xxxxxxxxxx |
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