Unassociated Document


    Exhibit
      10.48

     

    AMENDMENT
      NO. 1 TO LOAN
      AND SECURITY AGREEMENT

     

    This
      AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT (this “Amendment”)
      dated
      as of February __, 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 (the “Loan
      Agreement”);
      and

     

    WHEREAS,
      Borrower, Agent and Lenders have agreed to make certain amendments 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 1
      of the
      Loan Agreement is hereby amended by amending and restating the definition of
      “Bank
      Product”
set
      forth therein to read as follows:

     

    “Bank
      Product:
      any of
      the following products, services or facilities extended to Borrower or any
      Subsidiary by any Lender or any of its Affiliates: (a) Cash Management Services;
      (b) products under Hedging Agreements; and (c) commercial credit card
      and merchant card services.”

     

    (b)    Section 1
      of the
      Loan Agreement is hereby amended by amending and restating the definition of
      “Cash
      Management Services”
set
      forth therein to read as follows:

     

    “Cash
      Management Services:
      any
      services provided from time to time by any Lender or any of its Affiliates
      to
      Borrower or any Subsidiary in connection with operating, collections, payroll,
      trust, or other depository or disbursement accounts, including automatic
      clearinghouse, controlled disbursement, depository, electronic funds transfer,
      information reporting, lockbox, stop payment, overdraft and/or wire transfer
      services.”

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

       

    

    (c)    Section 5.6.1
      of the
      Loan Agreement is hereby amended by amending and restating categories
first
      through
eighth
      set
      forth therein and adding a new category ninth
      to read
      as follows: 

     

    “(a)    first,
      to all
      costs and expenses, including Extraordinary Expenses, owing to
      Agent;

     

    (b)    second,
      to Bank
      Product Debt to the extent Bank Product Reserves are established with respect
      to
      such Bank Product Debt;

     

    (c)    third,
      to all
      amounts owing to Agent on Swingline Loans;

     

    (d)    fourth,
      to all
      amounts owing to Issuing Bank on LC Obligations;

     

    (e)    fifth,
      to all
      Obligations constituting fees (excluding fees relating to Bank
      Products);

     

    (f)    sixth,
      to all
      Obligations constituting interest (excluding interest relating to Bank
      Products);

     

    (g)    seventh,
      to
      provide Cash Collateral for outstanding Letters of Credit; 

     

    (h)    eighth,
      to the
      principal amount of all Loans outstanding; and

     

    (i)    ninth,
      to all
      other Obligations.”

     

    (d)    Section 10.3
      of the
      Loan Agreement is hereby amended by replacing the word “Change” in the heading
      thereto with the word “Charge”.

     

    Section
      2    Conditions
      to Effectiveness.
      The
      effectiveness of the amendments set forth in Section 1
      above
      are 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.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

       

    

    (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 amendments set forth herein are 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.

     

    (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. 1 to Loan and Security Agreement to be duly executed as of the day and
      year first above written.

     

    
      	 	
              BORROWER: 

            
	 	 
	 	HINES NURSERIES, INC. 
	 	 
	 	By:   /s/
              Claudia
              Pieropan                                                             
                       
              
	 	Title:  CFO                                                                                       
               
	 	Name:  Claudia
              Pieropan                                                               
               
	 	 
	 	PARENT: 
	 	 
	 	HINES HORTICULTURE, INC. 
	 	 
	 	By:   /s/
              Claudia
              Pieropan                                                                        
	 	Title:  CFO                                                                                          
	 	Name:  Claudia
              Pieropan                                                                  
	 	 
	 	
              AGENT
                AND LENDERS: 

            
	 	 
	 	
              BANK
                OF AMERICA, N.A., as Agent and a Lender 

            
	 	 
	 	By:   /s/ Jason
              Riley         
                                                                                       
	 	Title:  VP                                                                                             
	 	
              Name:
                 Jason
                Riley                                                                          
                

            


    

     

     

     

    [Signature
      Page to Amendment No. 1 to  

    Loan
      and Security Agreement] 

    S-1