LIMITED WAIVER TO LOAN AND SECURITY AGREEMENT
Exhibit
10.51
LIMITED
WAIVER TO LOAN
AND SECURITY AGREEMENT
This
LIMITED WAIVER TO LOAN AND SECURITY AGREEMENT (this “Waiver”)
dated
as of April 30, 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 audited
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 certain Events of Default exist (or may arise) under
Section 11.1 of the Loan Agreement as a result of (a) Borrower’s failure to
deliver annual audited financial statements for the year ending December 31,
2006 as required by Section 10.1.2 of the Loan Agreement within 90 days of
the
end of such year end, (b) Borrower’s failure to provide notice of default under
the Indenture for failure to provide the audited financial statements for the
year ending December 31, 2006 and 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 and (c) the Borrower’s restatement of
its 2004 audited financial statements as described on the schedule dated April
27, 2007 and previously delivered by the Borrower to the Required Lenders which
restatement may be material and a breach of the representation made in Section
9.1.8 of the Loan Agreement (collectively, the “Events 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 Events of Default; provided,
that
Borrower shall (x) deliver such audited financial statements for the fiscal
year
ending December 31, 2006 required by Section 10.1.2 of the Loan Agreement
(together with any other financial information and documents required to be
delivered in connection with such financial statements) and (y) deliver the
audited financial statements for the year ending December 31, 2006 and 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, in each case under clauses (x) and (y) by no later than May 28,
2007, the failure of which shall cause such waiver to be terminated and result
in such Events 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.
1
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; and
(b) Agent
shall have received a reaffirmation from Parent of its Guaranty.
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.
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.
2
(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/ Xxxxxx X. Xxxxx | |
| Title: Sr. Vice President | |
|
Name: Xxxxxx
X. Xxxxx
|
|
| PNC BANK, NATIONAL ASSOCIATION, as a Lender | |
| By: /s/ Xxxxxxx Xxxx | |
| Title: Vice President | |
|
Name: Xxxxxxx
Xxxx
|
|
| GMAC COMMERCIAL FINANCE LLC | |
| By: /s/ Xxxxxx Xxxxxxxxxx | |
| Title: Director | |
| Name: Xxxxxx Xxxxxxxxxx |
[Signature
Page to Amendment No. 2 to
S-1
