|
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 Hines 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 th
|
