LIMITED WAIVER AND CONSENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.1
LIMITED
WAIVER AND CONSENT TO LOAN
AND SECURITY AGREEMENT
This
LIMITED WAIVER AND CONSENT TO LOAN AND SECURITY AGREEMENT (this “Waiver”)
effective as of July 31, 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, waive a certain Event of Default and consent
to
the sale of certain real property located in Trenton, South Carolina 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 a
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 “Event of
Default”). Immediately upon the satisfaction of each of the conditions precedent
set forth in Section 3
below,
the Agent and Required Lenders hereby waive the Event of Default; provided,
that
Borrower shall deliver the unaudited financial statements for the fiscal quarter
ending March 31, 2007 required by the Indenture and cure any related defaults
thereunder by no later than August 31, 2007, the failure of which shall cause
such waiver to be terminated and result in such 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 Limited
Consent to the Loan Agreement.
Immediately upon the satisfaction of each of the conditions precedent set forth
in Section 3
below,
the Agent and Required Lenders hereby waive the restrictions set forth in
Section 10.2.6 of the Loan Agreement and provide their consent for the sole
purpose of permitting Borrower to consummate the sale of its inventory,
equipment and real property located in Trenton, South Carolina; provided,
that
net proceeds from such sale in the amount of at least $5,000,000 are deposited
into the Borrower’s cash deposit accounts held at Bank of America on or prior to
September 30, 2007, which shall be applied against the outstanding balance
of
Loans, if any, on such date, which in no case shall result in a permanent
reduction of the Revolver Commitment.
Section
3 Conditions
to Effectiveness.
The
effectiveness of the waivers and consent set forth in Sections 1
and 2
above
are 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; and
(b) Agent
shall have received a reaffirmation from Parent of its Guaranty.
Section
4 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
5 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.
2
(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.
(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
and
Consent 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 X.
Xxxxxxxx
Title:
CFO
Name: Xxxxxxx
X.
Xxxxxxxx
PARENT:
XXXXX
HORTICULTURE, INC.
By:
/s/
Xxxxxxx X.
Xxxxxxxx
Title:
CFO
Name: Xxxxxxx
X.
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 X.
Xxxx
Title: Vice
President
Name: Xxxxxxx
X.
Xxxx
GMAC
COMMERCIAL FINANCE LLC, as a Lender
By:
/s/ Xxxxxx Xxxxxxxxxx
Title:
Director
Name:
Xxxxxx Xxxxxxxxxx
S-1
