Unassociated Document


    Exhibit
      10.49

     

    AMENDMENT
      NO. 2 TO LOAN
      AND SECURITY AGREEMENT

     

    This
      AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this “Amendment”)
      dated
      as of March 7, 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 make an amendment 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
      2.1.6
      of the
      Loan Agreement is hereby amended by amending and restating such Section in
      its
      entirety to read as follows: 

     

    “2.1.6
      Protective
      Advances
      Agent
      shall be authorized, in its discretion, at any time that any conditions in
      Section
      6
      are not
      satisfied, to make Base Rate Revolver Loans (“Protective
      Advances”)
      (a) up
      to an aggregate amount of $5,000,000 outstanding at any time, if Agent deems
      such Loans necessary or desirable to preserve or protect Collateral, or to
      enhance the collectibility or repayment of Obligations; or (b) to pay any other
      amounts chargeable to Obligors under any Loan Documents, including costs, fees
      and expenses. Each Lender shall participate in each Protective Advance on a
      Pro
      Rata basis. Notwithstanding the foregoing, in no event shall the aggregate
      outstanding amount of Protective Advances, together with the outstanding
      Revolver Loans and LC Obligations, exceed the aggregate Revolver Commitments.
      Required Lenders may at any time revoke Agent’s authority to make further
      Protective Advances by written notice to Agent. Absent such revocation, Agent’s
      determination that funding of a Protective Advance is appropriate shall be
      conclusive.” 

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

       

    

    Section
      2    Conditions
      to Effectiveness.
      The
      effectiveness of the amendment set forth in Section 1
      above is
      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.

     

    (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 amendment set forth herein is 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.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

       

    

    (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. 2 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:   Vice
                President                                                                         
	 	
                Name:
                   Jason
                  Riley                                                                          
                  

              
	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as
                a
                Lender 
	 	 
	 	By:   /s/ Gregory
                Hall                                                                                  
	 	Title:    Vice
                President                                                                        
	 	
                Name:  Gregory
                  Hall                                                                         

              


      

       

       

       

      [Signature
        Page to Amendment No. 1 to  

      Loan
        and Security Agreement] 

      S-1