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EXHIBIT 10.2
WAIVER REGARDING
FINANCIAL COVENANTS
This WAIVER (this "WAIVER") is dated as of October 13, 2005,
and
entered into by and among HINES NURSERIES,
INC., a California corporation
("COMPANY"), and HINES SGUS INC., a Nevada
corporation ("HINES SGUS" and,
together with Company, individually a
"BORROWER" and collectively the
"BORROWERS"), the financial institutions
party hereto, and DEUTSCHE BANK TRUST
COMPANY AMERICAS, as administrative agent
for Lenders (in such capacity,
"AGENT"), and, for purposes of Section 6
hereof, the Guarantors, and is made
with reference to that certain Credit
Agreement dated as of September 30, 2003,
as amended by a First Amendment to Credit
Agreement dated as of June 30, 2005
(as so amended, the "CREDIT AGREEMENT"), by
and among Borrowers, the financial
institutions party thereto (each
individually referred to herein as a "LENDER"
and collectively as "LENDERS"), and the
Agent. Capitalized terms used herein
without definition shall have the same
meanings herein as set forth in the
Credit Agreement.
RECITALS
WHEREAS, Borrowers have requested Lenders to waive compliance
with
Sections 8.1(a) and 8.1(b) of the Credit
Agreement for the third Fiscal Quarter
in Fiscal Year 2005 and Lenders are
prepared to waive such compliance subject to
Borrowers' compliance with the terms and
conditions set forth in this Waiver;
WHEREAS, Borrowers have advised Lenders that they wish to reduce
the
aggregate Revolving Loan Commitments from
$145,000,000 to $120,000,000, such
reduction to reduce the Revolving Loan
Commitment of each Lender proportionately
to its Proportionate Share;
NOW, THEREFORE, in consideration of the premises and the
agreements,
provisions and covenants herein contained,
the parties hereto agree as follows:
SECTION 1.
NOTICE OF REDUCTION OF REVOLVING LOAN COMMITMENTS AND WAIVER
A. NOTICE OF COMMITMENT REDUCTION. The Borrowers hereby
irrevocably notify Agent that, effective
upon the earlier to occur of the
consummation of the Farm A Sale or the
repayment in full of the Term Loan, the
Borrowers hereby reduce the aggregate
Revolving Loan Commitments to
$120,000,000, such Revolving Loan
Commitment reduction to reduce the Revolving
Loan Commitment of each Lender
proportionately to its Proportionate Share.
B. WAIVER. Subject to the terms and conditions set forth
herein and in reliance on the
representations and warranties of Borrowers herein
contained, Lenders hereby waive compliance
with the provisions of Sections
8.1(a) and 8.1(b) of the Credit Agreement
for the third Fiscal Quarter in Fiscal
Year 2005; PROVIDED that the Farm A Sale
shall be consummated by no later than
November 30, 2005, for Net Asset Sale
Proceeds of not less than $40,000,000.
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SECTION 2.
LIMITATION OF WAIVER
Without limiting the generality of the provisions of Section
11.10 of the Credit Agreement, the waiver
set forth above shall be limited
precisely as written and relates solely to
the noncompliance by Borrowers with
the provisions of Sections 8.1(a) and
8.1(b)of the Credit Agreement in the
manner and to the extent described above,
and nothing in this Waiver shall be
deemed to:
(a) constitute a waiver of compliance by Borrowers
with respect to (i) Sections 8.1(a) and 8.1(b) of the Credit
Agreement in any other instance or (ii) any oth
