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EXHIBIT 10.1
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LIMITED WAIVER TO LOAN AND SECURITY AGREEMENT
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This LIMITED WAIVER TO LOAN AND SECURITY AGREEMENT (this
"WAIVER") dated as
of May 29, 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 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 that
certain Limited Waiver to Loan and Security Agreement dated as
of April 30, 2007
among the parties hereto, (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
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defaults thereunder, in each case under clauses (x) and (y) by
no later than
June 28, 2007, the failure of which shall cause such waiver to
be terminated and
result in such Events of Default continuing to exist
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