Unassociated Document


    Exhibit
      10.46

    


    ADDENDUM
      NO. 5 TO AMENDED 

    AND
      RESTATED GROUND LEASE

     

    This
      ADDENDUM NO. 5 TO AMENDED AND RESTATED GROUND LEASE (this "Addendum")
      is
      made as of January 1, 2007, by and between THE IRVINE COMPANY LLC, a Delaware
      limited liability company ("Landlord"),
      and
      HINES NURSERIES, INC., a California corporation ("Tenant").
      

    


    RECITALS

     

    A.
      Landlord and Tenant are parties to that certain Amended and Restated Ground
      Lease dated September 1, 1996 (the "Original
      Lease"),
      as
      amended by Addendum No. 1 to Amended and Restated Ground Lease dated as of
      October 26, 1996 ("Addendum
      No. 1"),
      Addendum No. 2 to Amended and Restated Ground Lease dated as of December 18,
      1997 ("Addendum
      No. 2"),
      Addendum No. 3 to Amended and Restated Ground Lease dated as of May 19, 2003
      ("Addendum
      No. 3")
      and
      Addendum No. 4 to Amended and Restated Ground Lease dated as of September 23,
      2005 ("Addendum
      No. 4").
      The
      Original Lease, Addendum No. 1, Addendum No. 2, Addendum No. 3 and Addendum
      No.
      4 are sometimes hereinafter collectively referred to as the "Amended
      Lease."
      Pursuant to the Amended Lease, Tenant leases certain premises from Landlord
      as
      more particularly described therein (the "leased
      premises").
      

     

    B.
      Landlord and Tenant desire to extend the term of the Amended Lease as to a
      portion of the leased premises, as set forth in this Addendum 

     

    C.
      Capitalized terms used in this Addendum but not defined herein shall have the
      same meaning given in the Amended Lease. 

     

    D.
      The
      Amended Lease, as modified by this Addendum, is hereinafter referred to as
      the
      "Lease."
      

     

    AGREEMENT
      

     

    In
      consideration of the foregoing recitals and the mutual covenants and conditions
      set forth in this Addendum, Landlord and Tenant hereby amend the Amended Lease
      as follows: 

     

    1.    Reconfiguration
      of "Area 1" and "Area 2." Pursuant
      to Addendum No. 3, a portion of "Area C" (as shown on Exhibit "A" to Addendum
      No. 3) described as "Area 1" was to be deleted from the leased premises as
      of
      June 30, 2006, and the remainder of Area C (described in Addendum No. 3 as
      "Area
      2") was to be deleted from the leased premises on December 31, 2006. Pursuant
      to
      a verbal agreement of Landlord and Tenant, the configuration of "Area 1" and
      "Area 2" was changed to be as shown on Exhibit
      "A" attached
      hereto. Landlord and Tenant hereby confirm that the configuration of "Area
      1"
      and "Area 2" is as shown on Exhibit
      "A" and
      that
      "Area 1" was deleted from the leased premises as of June 30, 2006. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    2.    Deletion
      of "Area 2." 

     

    (a)
      Extension
      as to Westerly Six Hundred Feet of "Area 2." Effective
      upon the execution of this Addendum, the term of the Lease for that portion
      of
      "Area 2" described generally as the six hundred (600) feet immediately adjacent
      to and easterly of Jeffrey Road, between Irvine Blvd. and Portola Parkway,
      and
      shown on Exhibit
      "A" attached
      hereto (the "Jeffrey
      Road Parcel")
      shall
      be extended until 5:00 P.M. on June 30, 2007. The Jeffrey Road Parcel shall
      automatically and without further notice be removed from the leased premises,
      and the Lease shall automatically and without further notice terminate as to
      such area, effective 5:00 P.M. on June 30, 2007. 

    


    (b)
      Deletion
      as to Remainder of "Area 2." Except
      for the Jeffrey Road Parcel, the remainder of "Area 2" as shown on Exhibit
      "A"
      shall automatically and without further notice be removed from the leased
      premises, and the Lease shall automatically and without further notice terminate
      as to such area, effective 5:00 P.M. on December 31, 2006. 

     

    3.    Deleted
      

    


    4.    Authority.
      Each of
      the parties executing this Addendum on behalf of a corporation or limited
      liability company as indicated below represents and warrants that he/she is
      duly
      authorized to execute and deliver this Addendum on behalf of such corporation
      or
      limited liability company, that such execution and delivery has been approved
      by
      such entity's Board of Directors or other governing body, and that this Addendum
      is binding upon said corporation in accordance with its terms. 

    


    5.    Continued
      Effect.
      The
      Amended Lease, as specifically modified by this Addendum, shall continue in
      full
      force and effect. 

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    


    IN
      WITNESS WHEREOF, this Addendum No. 5 to Amended and Restated Ground Lease is
      executed as of the day and year first above written. 

    


    
      	
              THE
                IRVINE COMPANY LLC, 

              a Delaware limited liability company 

            	 	 	
              HINES
                NURSERIES, INC.,  

              a
                California corporation 

               

               

            
	By:       
              /s/
              Daniel C.
              Hedigan                                   
              	 	 	By:     
                      /s/
              Claudia
              Pieropan                                    
              
	      
Daniel
              C. Hedigan 	 	 	Name:         Claudia
              Pieropan                                          
              
	      
              Senior Vice President	 	 	Title:          
              CFO                                                                
              


    

     

     

    
      
        	
                 

              	 	 	
                 

              
	By:       
                /s/ Peter
                Changala      
                                                  
                	 	 	By:     
                        /s/ Robert
                A.
                Ferguson                               
                
	      
Peter
                Changala,	 	 	Name:         Robert
                A. Ferguson                                     
                
	      
                Vice President	 	 	Title:          
                CEO                                                                
                
	 	 	 	 
	
                “Landlord”
                  

              	 	 	
                “Tenant”

              


      
  

     

     

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