EXHIBIT 99.5
WARRANT AND GUARANTEE AGREEMENT
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This Warrant and Guarantee Agreement (this "Agreement"), is entered
into this 28th day of November, 2000, by and between Xxxxx Horticulture, Inc.,
a Delaware corporation and successor by merger to Xxxxx Holdings, Inc. (the
"Company"), Xxxxx Nurseries, Inc, a California corporation formerly known as
Xxxxx Horticulture, Inc. and wholly owned subsidiary of the Company
("Subsidiary") and Madison Dearborn Capital Partners, L.P. ("MDP").
WHEREAS, Subsidiary has proposed to enter into an amendment to that
certain Amended and Restated Credit Agreement (as amended by the First Amendment
to Credit Agreement dated as of March 3, 2000, the "Credit Agreement") dated as
of June 26, 1998, among the Borrowers, the lenders listed therein, Bank of
America, N.A., as Syndication Agent, Xxxxxx Trust and Savings Bank, as
Documentation Agent, Deutsche Bank Canada, as Canadian Agent, and Bankers Trust
Company, as Administrative Agent (the "Second Amendment").
WHEREAS, MDP has agreed to provide a guarantee with respect to certain
amounts borrowed under the Credit Agreement as amended by the Second Amendment
(the "Guarantee") in exchange for $600,000 in cash, to be paid by Subsidiary,
and warrants (the "Warrants") to initially purchase 440,000 shares of the
Company's Common Stock, par value $.01 per share ("Common Stock").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Exchange of Cash, Warrants and Guarantee. On the terms and conditions
set forth in this Agreement, on the date hereof, (i) Subsidiary agrees to pay to
MDP $600,000 by wire transfer in immediately available funds, (ii) the Company
hereby agrees to issue to MDP the Warrants having such terms and conditions as
substantially set forth in the form of stock purchase warrant attached hereto as
Exhibit A (the "Stock Purchase Warrant"), and (iii) MDP hereby agrees to enter
into an agreement with respect to the Guarantee substantially in the form
attached hereto as Exhibit B (the "Guarantee Agreement").
2. Representations and Warranties. Each of the Company, Subsidiary and
MDP represents with respect to itself that it has the full power, capacity and
authority to enter into this Agreement and to perform its obligations hereunder,
and that this Agreement is a valid and binding obligation enforceable in
accordance with its terms.
3. Successors and Assigns. Each party agrees that it will not assign,
sell, transfer, delegate, or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any right or obligation under this
Agreement. Any purported assignment, transfer or delegation in violation of
this Section 3 shall be null and void. Subject to the foregoing limits on
assignment and delegation and except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their respective heirs, legatees, executors, administrators, assignees and legal
successors.
4. Amendments and Waivers. Any term hereof may be amended and the
observance of any term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company, Subsidiary and MDP. Any amendment or waiver so effected
shall be binding upon the Company, Subsidiary and MDP.
5. Counterparts. This Agreement may be executed in any number of
counterparts, and all of such counterparts together will be deemed one
instrument.
6. Descriptive Headings; Interpretation. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
7. Governing Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
8. Notices. Any and all notices, acceptances, statements and other
communications in connection herewith shall be in writing, delivered personally,
by facsimile or certified mail, return receipt requested.
9. Entire Agreement. This Agreement, the Stock Purchase Warrant and the
Guarantee Agreement constitute the entire understanding and agreement between
the parties hereto with respect to the subject matter hereof.
10. Severability of this Agreement. In case any provision of this
Agreement shall be invalid or unenforceable, the validity, legality and
enforceability of the remaining shall not in any way be affected or impaired
thereby.
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IN WITNESS WHEREOF, there parties hereto have executed this Agreement as of
the date written above.
XXXXX HORTICULTURE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
XXXXX NURSERIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Chief Financial Officer and Secretary
MADISON DEARBORN CAPITAL PARTNERS, L.P.
By: Madison Dearborn Partners, L.P.,
its General Partner
By: Madison Dearborn Partners, Inc.,
its General Partner
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Managing Director
EXHIBIT A
STOCK PURCHASE WARRANT
EXHIBIT B
GUARANTEE AGREEMENT
