**EXHIBIT 10.33**

 

SIXTH AMENDMENT TO

REVOLVING CREDIT AND TERMLOAN AGREEMENT

 

THIS SIXTH AMENDMENT TO REVOLVING CREDIT AND TERM LOANAGREEMENT dated as of August 13, 2004 (the “Amendment”), is enteredinto by and between CAPITALSOURCE FINANCE LLC, a Delaware limited liabilitycompany, in its capacity as administrative agent and collateral agent for theLenders under the Agreement referenced below (“Agent”), the Lendersparty thereto, and GARDENBURGER, INC., an Oregon corporation (“Borrower”).  Capitalized terms used and not otherwisedefined herein are used as defined in the Agreement (as defined below).

 

WHEREAS, the Agent, Lenders and Borrower have enteredinto that certain Revolving Credit and Term Loan Agreement dated as ofJanuary 10, 2002 (as amended, supplemented, modified and/or restated fromtime to time, the “Agreement”), together with a First Amendment to theAgreement dated as of September 30, 2002, a Second Amendment to theAgreement dated as of December 31, 2002, a Third Amendment to theAgreement dated as of March 31, 2003, a Fourth Amendment to the Agreementdated as of December 29, 2003 and a Fifth Amendment to the Agreement datedas of April 8, 2004;

 

WHEREAS, Borrower has requested that Agent and Lendersamend certain provisions of the Agreement and waive certain Events of Default,all as provided herein; and

 

WHEREAS, subject to satisfaction of the conditions setforth herein, Agent and the Lenders are willing to amend the Agreement asprovided herein.

 

NOW, THEREFORE, in consideration of the premises andthe other mutual covenants contained herein, the receipt and sufficiency ofwhich are hereby acknowledged, the parties hereto agree as follows:

 

# SECTION 1.  Amendments.  As of the Effective Date, the Agreement isamended as follows:

#  

## (a)           Section 3.4of the Agreement shall be and hereby is amended and restated and replaced inits entirety to read in full as follows:

##  

“**3.4****        Termination Fee; Exit Fee**

 

Upon the earlier of (i) the payment in full of theTerm Loan and (ii) the last day of the Term Loan Term, Borrower shall pay Agentfor the ratable benefit of Lenders, an exit fee of $750,000 (the “**Exit Fee**”).  Borrowermay permanently repay the Loans and terminate Lender’s future lendingcommitments hereunder, provided, that if such repayment or terminationoccur on or before August 13, 2005, Borrower shall also pay a terminationfee (“**Termination Fee**”) of 1% ofthe sum of (A) the Facility Cap and (B) the outstanding balance ofthe Term Loan on August 13, 2004, minus the amount of scheduled principalpayments made between August 13, 2004, and the date of such repayment ortermination, and furtherprovided, that Borrower shall not beobligated to pay the Termination Fee if CapitalSource is a lender in the creditfacility which replaces or refinances this Agreement.”

 

## (b)           Section 6.1(g)of the Agreement shall be and hereby is amended and restated and replaced inits entirety to read in full as follows:

##  

“(g)         Recipesand Procedures.  Borrower shallfurnish to Agent by July 20 and January 20 of each year, a copy of each recipeand procedures (which has not previously been delivered to Agent) for makingeach product of Borrower, which shall be held by Agent in a safe deposit boxuntil such time as an Event of Default exists. Prior to an Event of Default, Agent will not disclose or distribute therecipes or procedures to any Person, unless in connection with pursuingand enforcing Agent’s and Lender’s remedies under the Loan Documents.  Notwithstanding anything contained in thisAgreement to the contrary, CapitalSource and its affiliates, as Agent and/orLender, may disclose to their lenders such recipes and procedures, providedsuch lenders agree with CapitalSource (orally or in writing) to be subject tothe restrictions set forth in this Section 6.1(g).”

 

----

 

## (c)           Anew Section 6.1(i) shall be added to the Agreement to read in full asfollows:

##  

“(i)          IntellectualProperty.  Borrower shall furnish toAgent by July 20 and January 20 of each year, a report specifying any materialIntellectual Property interests acquired by, obtained by, or licensed toBorrower (which has not been previously disclosed to Agent), and shall deliverto Agent, within ten (10) calendar days after Agent’s request, documentation toperfect Agent’s, for its benefit and the benefit of the Lenders, Lien in suchIntellectual Property, in each case in form and substance acceptable to Agentin its Permitted Discretion.”

 

## (d)           Paragraphs 4and 5 of Annex I of the Agreement shall be and hereby are amended andrestated and replaced in their entirety to read in full as follows:

##  

“**4)****          CapitalExpenditures**

 

Borrower shall not permitits Capital Expenditures in the aggregate to exceed $1,550,000 for the fiscalyear ending on September 30, 2004, and $1,100,000 for each fiscal yearending on or after September 30, 2005.

 

**5)****            Senior Fixed Charge Coverage Ratio.**

 

The Senior Fixed ChargeCoverage Ratio for each Quarterly Test Period set forth below shall not be lessthan the ratios specified below:

 
| **Quarterly  Test Period** | ** ** | **Ratio** | ** ** |
|----------------------------|------------|-----------|------------|
| September 30, 2004         |       | 1.35:1.00 |       |
| December 31, 2004          |       | 1.25:1.00 |       |
| March 31, 2005             |       | 1.48:1.00 |       |
| June 30, 2005              |       | 1.57:1.00 |       |

#  

# SECTION 2.  Conditions.  This Amendment shall be effective upon thesatisfaction of the following conditions precedent (the “Effective Date”):  (a) the representations and warrantiescontained herein and in all other Loan Documents shall be true and correct inall material respects as of the date hereof, except for such representationsand warranties limited by their terms to a specific date; (b) except asspecifically waived in Section 4 of this Amendment, no Default or Event ofDefault shall be in existence as of the date hereof; (c) Borrower shall havedelivered to the Agent an executed original copy of this Amendment and eachother agreement, document or instrument reasonably requested by the Agent inconnection with this Amendment; (d) (i) the holders of the Subordinated Debtand Borrower shall have executed a Sixth Amendment to Note Purchase Agreement(the “Note Purchase Agreement Amendment”) in the form attached hereto asExhibit A and (ii) the holders of the Subordinated Debt shall haveconsented in writing to this Amendment, in form and substance satisfactory toAgent, and none of the provisions of this Amendment shall be a breach or eventof default under the Note Purchase Agreement or with respect to theSubordinated Debt; (e) Borrower shall have paid to Agent all fees, costsand expenses owed to and/or incurred by the Agent and Lenders arising inconnection with the Loan Documents and/or this Amendment; and (f) allproceedings taken in connection with the transactions contemplated by thisAmendment and all documentation and other legal matters incident thereto shallbe satisfactory to the Agent.

#  

# SECTION 3.  Consent to Modifications of Agreementswith Subordinated Lender.  As of theEffective Date, Agent and Lenders hereby consent to Borrower’s execution anddelivery of the Note Purchase Agreement Amendment.

#  

# SECTION 4.  Waivers.  Agent and Lenders (a) hereby acknowledge thatEvents of Default exist because of Borrower’s failure to comply with the (i)Senior Fixed Charge Coverage Ratio for the Quarterly Test Period endingJune 30, 2004 and (ii) the $1,200,000 limit on Capital Expenditures forthe fiscal year ending September 30, 2004; and (b) as of the EffectiveDate waive all such Events of Default (provided, that this shall not constitutea waiver of the increased limit of $1,550,000 for the fiscal year endingSeptember 30, 2004 as provided in this Amendment).  Borrower has represented to Agent that itsSenior Fixed Charge Coverage Ratio for the Quarterly Test Period ending June30, 2004 was 0.81:1.00.

 

2

----

 

# SECTION 5.  Agreement in Full Force and Effect asAmended.  Except as specificallyamended hereby, the Agreement and other Loan Documents shall remain in fullforce and effect and are hereby ratified and confirmed as so amended.  Except as expressly set forth herein, thisAmendment shall not be deemed to be a waiver, amendment or modification of anyprovisions of the Agreement or any other Loan Document or any right, power orremedy of Agent or Lenders, or constitute a waiver of any provision of theAgreement or any other Loan Document, or any other document, instrument and/oragreement executed or delivered in connection therewith or of any Default orEvent of Default under any of the foregoing, in each case whether arisingbefore or after the date hereof or as a result of performance hereunder orthereunder.  This Amendment also shallnot preclude the future exercise of any right, remedy, power, or privilegeavailable to Agent and/or Lenders whether under the Agreement, the other LoanDocuments, at law or otherwise.  Allreferences to the Agreement shall be deemed to mean the Agreement as modifiedhereby.  This Amendment shall notconstitute a novation or satisfaction and accord of the Agreement and/or otherLoan Documents, but shall constitute an amendment thereof.  The parties hereto agree to be bound by theterms and conditions of the Agreement and Loan Documents as amended by thisAmendment, as though such terms and conditions were set forth herein.  Each reference in the Agreement to “thisAgreement,” “hereunder,” “hereof,” “herein” or words of similar import shallmean and be a reference to the Agreement as amended by this Amendment, and eachreference herein or in any other Loan Documents to the “Loan Agreement” or “CreditAgreement” shall mean and be a reference to the Agreement as amended andmodified by this Amendment.

#  

# SECTION 6.  Representations.  Borrower hereby represents and warrants toAgent and Lenders as follows:  (i) it isduly incorporated or organized, validly existing and in good standing under thelaws of its jurisdiction of organization; (ii) the execution, delivery andperformance by it of this Amendment and all other Loan Documents executedand/or delivered in connection herewith are within its powers, have been dulyauthorized, and do not contravene (A) its articles of organization, operatingagreement, or other organizational documents, or (B) any applicable law; (iii)no consent, license, permit, approval or authorization of, or registration,filing or declaration with any Governmental Authority or other Person, isrequired in connection with the execution, delivery, performance, validity or enforceabilityof this Amendment or any other Loan Documents executed and/or delivered inconnection herewith by or against it; (iv) this Amendment and all other LoanDocuments executed and/or delivered in connection herewith has been dulyexecuted and delivered by it; (v) this Amendment and all other Loan Documentsexecuted and/or delivered in connection herewith constitute its legal, validand binding obligation enforceable against it in accordance with its terms,except as enforceability may be limited by applicable bankruptcy, insolvency,reorganization, moratorium or similar laws affecting the enforcement ofcreditors’ rights generally or by general principles of equity; (vi) aftergiving effect to this Amendment, it is not in default under the Loan Documentsand no Default or Event of Default exists, has occurred and is continuing orwould result by the execution, delivery or performance of this Amendment; and(vii) the representations and warranties contained in the Loan Documents aretrue and correct in all material respects as of the date hereof as if made onthe date hereof, except for such representations and warranties limited bytheir terms to a specific date.

#  

# SECTION 7.  Miscellaneous.

#  

## (a)           ThisAmendment may be executed in any number of counterparts (including byfacsimile), and by the different parties hereto on the same or separatecounterparts, each of which shall be deemed to be an original instrument butall of which together shall constitute one and the same agreement.  Each party agrees that it will be bound byits own facsimile signature and that it accepts the facsimile signature of eachother party.  The descriptive headings ofthe various sections of this Amendment are inserted for convenience of referenceonly and shall not be deemed to affect the meaning or construction of any ofthe provisions hereof or thereof. Whenever the context and construction so require, all words herein inthe singular number herein shall be deemed to have been used in the plural, andvice versa, and the masculine gender shall include the feminine and neuter andthe neuter shall include the masculine and feminine.

##  

## (b)           ThisAmendment may not be changed, amended, restated, waived, supplemented,discharged, canceled, terminated or otherwise modified orally or by any courseof dealing or in any manner other than as provided in the Agreement.  This Amendment shall be considered part ofthe Agreement and shall be a Loan Document for all purposes under the Agreementand other Loan Documents.

##  

## (c)           ThisAmendment, the Agreement and the Loan Documents constitute the final, entireagreement and understanding between the parties with respect to the subjectmatter hereof and thereof and may not 

 

3

----

 

## be contradicted byevidence of prior, contemporaneous or subsequent oral agreements between theparties, and shall be binding upon and inure to the benefit of the successorsand assigns of the parties hereto and thereto. There are no unwritten oral agreements between the parties with respectto the subject matter hereof and thereof.

##  

## (d)           THISAMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENTSHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THECHOICE OF LAW PROVISIONS SET FORTH IN THE AGREEMENT AND SHALL BE SUBJECT TO THEWAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE AGREEMENT.

##  

## (e)           Borrowermay not assign, delegate or transfer this Amendment or any of its rights orobligations hereunder.  No rights areintended to be created under this Amendment for the benefit of any third partydonee, creditor or incidental beneficiary of Borrower or any Guarantor.  Nothing contained in this Amendment shall beconstrued as a delegation to Agent or Lenders of Borrower’s or any Guarantor’sduty of performance, including, without limitation, any duties under anyaccount or contract in which Agent has or Lenders have a security interest orLien.  This Amendment shall be bindingupon the Borrower and its respective successors and assigns.

##  

## (f)            TheBorrower shall pay all costs and expenses incurred by Agent and Lenders or anyof their affiliates, including, without limitation, documentation and diligencefees and expenses, all search, audit, appraisal, recording, and filing fees andexpenses and all other out-of-pocket charges and expenses (including, withoutlimitation, UCC and judgment and tax lien searches and UCC filings and fees forpost-Closing UCC and judgment and tax lien searches) and reasonable fees andexpenses of outside counsel, in connection with entering into, negotiating,preparing, reviewing and executing this Amendment and the documents, agreementsand instruments contemplated hereby and all related agreements, documents andinstruments, and all of the same shall be part of the Obligations.

##  

## (g)           Borrowerhereby (i) agrees that this Amendment shall not limit or diminish theobligations of Borrower under the Loan Documents, (ii) reaffirms itsobligations under each of the Loan Documents to which it is a party, and (iii)agrees that each of such Loan Documents remains in full force and effect and ishereby ratified and confirmed.

##  

## (h)           Allrepresentations and warranties made in this Amendment shall survive theexecution and delivery of this Amendment and no investigation by Agent orLenders shall affect such representations or warranties or the right of Agentor Lenders to rely upon them.

##  

## (i)            BORROWERHEREBY ACKNOWLEDGES AND AGREES THAT IT KNOWS OF NO DEFENSE, COUNTERCLAIM,OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER ORIGINATINGON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED THAT CAN BE ASSERTED TO REDUCEOR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE OBLIGATIONS OR TOSEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM AGENT AND THELENDERS.  BORROWER HEREBY VOLUNTARILY ANDKNOWINGLY RELEASES AND FOREVER DISCHARGES AGENT, THE LENDERS AND EACH OF THEIRRESPECTIVE PREDECESSORS, AGENTS, EMPLOYEES, AFFILIATES, SUCCESSORS AND ASSIGNS(COLLECTIVELY, THE “RELEASED PARTIES”) FROM ALL POSSIBLE KNOWN CLAIMS,DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES AND LIABILITIESWHATSOEVER, FIXED, CONTINGENT OR CONDITIONAL, OR AT LAW OR IN EQUITY, IN ANYCASE ORIGINATING ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED THAT BORROWERMAY NOW OR HEREAFTER HAVE AGAINST THE RELEASED PARTIES, IF ANY, IRRESPECTIVE OFWHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW ORREGULATIONS, OR OTHERWISE, AND THAT ARISE FROM ANY OF THE LOANS, THE EXERCISEOF ANY RIGHTS AND REMEDIES UNDER THE AGREEMENT OR ANY OF THE OTHER LOANDOCUMENTS, AND/OR THE NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT,INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING,RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFULRATE APPLICABLE.  NOTWITHSTANDING THEFOREGOING, NOTHING CONTAINED IN THIS SECTION 7(i) SHALL APPLY WITH RESPECT TOANY WILLFUL MISCONDUCT OR BAD FAITH BY THE RELEASED PARTIES.

 

[SignaturePage Follows]

 

4

----

 

IN WITNESS WHEREOF, the parties have caused this SixthAmendment to Revolving Credit and Term Loan Agreement to be executed by theirrespective officers thereunto duly authorized, as of the date first abovewritten.

 

 
|   | **LENDER/AGENT:**              |
|--------|--------------------------------|
|   |                           |
|   | **CAPITALSOURCE  FINANCE LLC** |
|   |                           |
|   |                           |
|   | By:                            | /s/  Joseph Turitz |
|   | Name:                          | Joseph  Turitz |
|   | Title:                         | General  Counsel, Corporate Finance Group |
|   |                           |
|   |                           |
|   | **BORROWER:**                  |
|   |                           |
|   | **GARDENBURGER,  INC.**        |
|   |                           |
|   |                           |
|   | By:                            | /s/  Scott C. Wallace |
|   | Name:                          | Scott  C. Wallace |
|   | Title:                         | President  and Chief Executive Officer |
|        |                                |  |  |  |  |  |

 

5

----