AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
Exhibit
10.49
AMENDMENT
NO. 2 TO LOAN
AND SECURITY AGREEMENT
This
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this “Amendment”)
dated
as of March 7, 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 make an amendment as set forth herein
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 Amendments
to the Loan Agreement.
Immediately upon the satisfaction of each of the conditions precedent set forth
in Section 2
below,
the Loan Agreement is hereby amended as follows:
(a) Section
2.1.6
of the
Loan Agreement is hereby amended by amending and restating such Section in
its
entirety to read as follows:
“2.1.6
Protective
Advances
Agent
shall be authorized, in its discretion, at any time that any conditions in
Section
6
are not
satisfied, to make Base Rate Revolver Loans (“Protective
Advances”)
(a) up
to an aggregate amount of $5,000,000 outstanding at any time, if Agent deems
such Loans necessary or desirable to preserve or protect Collateral, or to
enhance the collectibility or repayment of Obligations; or (b) to pay any other
amounts chargeable to Obligors under any Loan Documents, including costs, fees
and expenses. Each Lender shall participate in each Protective Advance on a
Pro
Rata basis. Notwithstanding the foregoing, in no event shall the aggregate
outstanding amount of Protective Advances, together with the outstanding
Revolver Loans and LC Obligations, exceed the aggregate Revolver Commitments.
Required Lenders may at any time revoke Agent’s authority to make further
Protective Advances by written notice to Agent. Absent such revocation, Agent’s
determination that funding of a Protective Advance is appropriate shall be
conclusive.”
1
Section
2 Conditions
to Effectiveness.
The
effectiveness of the amendment 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 Amendment from Borrower
and the 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 Amendment that:
(a) No
Default; etc.
No
Default or Event of Default has occurred and is continuing after giving effect
to this Amendment or would result from the execution or delivery of this
Amendment 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 Amendment
and
to carry out the terms and provisions of the Loan Agreement, as amended by
this
Amendment, and the execution and delivery by Borrower of this Amendment, and
the
performance by Borrower of its obligations hereunder have been duly authorized
by all requisite action by Borrower.
(c) Execution
and Delivery.
Borrower has duly executed and delivered this Amendment.
(d) Enforceability.
This
Amendment 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 amendment 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. Each reference in the Loan Documents
to
the Loan Agreement and words of like import shall mean the Loan Agreement as
amended hereby. This Amendment 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
Amendment 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 Amendment by fax shall have the same force
and effect as the delivery of an original executed counterpart of this
Amendment. Any party delivering an executed counterpart of this Amendment 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
Amendment.
(c) Governing
Law.
This
Amendment 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 Amendment
No. 2 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
|
[Signature
Page to Amendment No. 1 to
S-1
