**EXHIBIT 10.34**

 

SEVENTH AMENDMENT TO

REVOLVING CREDIT AND TERMLOAN AGREEMENT

 

THIS SEVENTH AMENDMENT TO REVOLVING CREDIT AND TERMLOAN AGREEMENT dated as of November 29, 2004 (the “Amendment”), isentered into by and between CAPITALSOURCE FINANCE LLC, a Delaware limitedliability company, in its capacity as administrative agent and collateral agentfor the Lenders under the Agreement referenced below (“Agent”), theLenders party 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 by a First Amendment to Revolving Credit andTerm Loan Agreement dated as of September 30, 2002, a Second Amendment toRevolving Credit and Term Loan Agreement dated as of December 31, 2002, aThird Amendment to Revolving Credit and Term Loan Agreement dated as ofMarch 31, 2003, a Fourth Amendment to Revolving Credit and Term LoanAgreement dated as of December 29, 2003, a Fifth Amendment to RevolvingCredit and Term Loan Agreement dated as of April 8, 2004 and the SixthAmendment to Revolving Credit and Term Loan Agreement dated as of August 13,2004 (as amended, supplemented, modified and/or restated from time to time, the“Agreement”);

 

WHEREAS, Borrower has requested that Agent and Lendersamend the Agreement as provided herein; and

 

WHEREAS, subject tosatisfaction of the conditions set forth herein, Agent and the Lenders arewilling to amend the Agreement as provided 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:

 

# SECTION1.  Amendments.  As of the Effective Date, the Agreement isamended as follows:

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## (a)           PayrollAccounts.  Notwithstanding anythingin the Agreement to the contrary, Borrower shall not be required to deliver toAgent control agreements with respect to payroll bank accounts for Borrower aslong as such payroll bank accounts do not have a balance in excess of thecurrent payroll related obligations of Borrower.

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# SECTION2.  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) no Default orEvent of Default shall be in existence as of the date hereof; (c) Borrowershall have delivered to the Agent an executed original copy of this 

 

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# Amendment and each other agreement, document orinstrument reasonably requested by the Agent in connection with this Amendment;and (d) none of the provisions of this Amendment shall be a breach or event ofdefault under the Note Purchase Agreement or with respect to the SubordinatedDebt.

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# SECTION3.  Agreement in Full Forceand Effect as Amended.  Exceptas specifically amended hereby, the Agreement and other Loan Documents shallremain in full force and effect and are hereby ratified and confirmed as soamended.  Except as expressly set forthherein, this Amendment shall not be deemed to be a waiver, amendment ormodification of any provisions of the Agreement or any other Loan Document orany right, power or remedy of Agent or Lenders, or constitute a waiver of anyprovision of the Agreement or any other Loan Document, or any other document,instrument and/or agreement executed or delivered in connection therewith or ofany Default or Event of Default under any of the foregoing, in each casewhether arising before or after the date hereof or as a result of performancehereunder or thereunder.  This Amendmentalso shall not preclude the future exercise of any right, remedy, power, orprivilege available to Agent and/or Lenders whether under the Agreement, theother Loan Documents, at law or otherwise. All references to the Agreement shall be deemed to mean the Agreement asmodified hereby.  This Amendment shallnot constitute a novation or satisfaction and accord of the Agreement and/orother Loan 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.

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# SECTION4.  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 orenforceability of this Amendment or any other Loan Documents executed and/or deliveredin connection 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 

 

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# date hereof as if made on the date hereof, except for such representations andwarranties limited by their terms to a specific date.

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# SECTION5.  Miscellaneous.

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## (a)           ThisAmendment may be executed in any number of counterparts (including by facsimile),and by the different parties hereto on the same or separate counterparts, eachof which shall be deemed to be an original instrument but all of which togethershall constitute one and the same agreement. Each party agrees that it will be bound by its own facsimile signatureand that it accepts the facsimile signature of each other party.  The descriptive headings of the varioussections of this Amendment are inserted for convenience of reference only andshall not be deemed to affect the meaning or construction of any of theprovisions hereof or thereof.  Wheneverthe context and construction so require, all words herein in the singularnumber herein shall be deemed to have been used in the plural, and vice versa,and the masculine gender shall include the feminine and neuter and the neutershall include the masculine and feminine.

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## (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.

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## (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 be contradicted by evidence of prior,contemporaneous or subsequent oral agreements between the parties, and shall bebinding upon and inure to the benefit of the successors and assigns of theparties hereto and thereto.  There are nounwritten oral agreements between the parties with respect to the subjectmatter hereof and thereof.

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## (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.

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## (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.

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## (f)            TheBorrower shall pay all costs and expenses incurred by Agent and Lenders or anyof their affiliates, including, without limitation, documentation and diligencefees 

 

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## and expenses, allsearch, audit, appraisal, recording, and filing fees and expenses and all otherout-of-pocket charges and expenses (including, without limitation, UCC andjudgment and tax lien searches and UCC filings and fees for post-Closing UCCand judgment and tax lien searches) and reasonable fees and expenses of outsidecounsel, in connection with entering into, negotiating, preparing, reviewingand executing this Amendment and the documents, agreements and instrumentscontemplated hereby and all related agreements, documents and instruments, andall of the same shall be part of the Obligations.

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## (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.

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## (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.

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## (i)            BORROWERHEREBY ACKNOWLEDGES AND AGREES THAT IT KNOWS OF NO DEFENSE, COUNTERCLAIM,OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVERORIGINATING ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED THAT CAN BEASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THEOBLIGATIONS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROMAGENT AND THE LENDERS.  BORROWER HEREBYVOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES AGENT, THE LENDERSAND EACH OF THEIR RESPECTIVE PREDECESSORS, AGENTS, EMPLOYEES, AFFILIATES,SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ALLPOSSIBLE KNOWN CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS,EXPENSES AND LIABILITIES WHATSOEVER, FIXED, CONTINGENT OR CONDITIONAL, OR ATLAW OR IN EQUITY, IN ANY CASE ORIGINATING ON OR BEFORE THE DATE THIS AMENDMENTIS EXECUTED THAT BORROWER MAY NOW OR HEREAFTER HAVE AGAINST THE RELEASEDPARTIES, IF ANY, IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT,TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND THAT ARISE FROM ANY OFTHE LOANS, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE AGREEMENT OR ANYOF THE OTHER LOAN DOCUMENTS, AND/OR THE NEGOTIATION FOR AND EXECUTION OF THISAMENDMENT, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING,TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHESTLAWFUL RATE APPLICABLE.  NOTWITHSTANDINGTHE FOREGOING, NOTHING CONTAINED IN THIS SECTION 7(i) SHALL APPLY WITH RESPECTTO ANY WILLFUL MISCONDUCT OR BAD FAITH BY THE RELEASED PARTIES.

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[Signature PageFollows]

 

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IN WITNESS WHEREOF, the parties have caused thisSeventh Amendment to Revolving Credit and Term Loan Agreement to be executed bytheir respective 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 |
|   |                           |
|   | ** **                     |
|   | **BORROWER:**                  |
|   |                           |
|   | **GARDENBURGER,  INC.**        |
|   |                           |
|   |                           |
|   | By:                            | /s/  Robert T. Trebing, Jr. |
|   | Name:                          | Robert  T. Trebing, Jr. |
|   | Title:                         | Senior  Vice President and Chief Financial Officer |
|        |                                |  |  |  |  |

 

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