RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, 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 LAWFUL RATE
APPLICABLE.
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS
SECTION 8(I) SHALL APPLY WITH RESPECT TO ANY WILLFUL MISCONDUCT OR BAD FAITH BY
THE RELEASED PARTIES.
[Signature Page Follows]
7
IN WITNESS WHEREOF, the parties have caused this Ninth Amendment to Revolving
Credit and Term Loan Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
LENDER/AGENT:
CAPITALSOURCE FINANCE LLC
By:
/s/ Joseph Turitz
Name:
Joseph Turitz
Title:
General Counsel Corporate Finance
BORROWER:
GARDENBURGER, INC.
By:
/s/ Robert T. Trebing, Jr.
Name:
Robert T. Trebing, Jr.
Title:
Senior Vice President and Chief Financial Officer
SCHEDULE A
(Schedule of Obligations)
(Unpaid principal as of August 8, 2005)*
Revolving Credit Loans:
$
3,574,343.87
Term Loan:
$
3,028,159.00
*plus accrued and accruing interest, costs, fees, attorneys' fees and
disbursements and other charges as well as adjustments, credits, and charges as
provided as provided under the Loan Documents.
EXHIBIT 3(h)
(Amended and Restated Disclosure Schedules)
Attached.
EXHIBIT 4(f)
(Form of Secretary's And Incumbency Certificate)
Attached.
GARDENBURGER, INC.
SECRETARY'S AND INCUMBENCY CERTIFICATE
August 9, 2005
I, Robert T. Trebing, Jr., being the Secretary of Gardenburger, Inc., an Oregon
corporation (the "Corporation"), DO HEREBY CERTIFY as follows:
1.
I AM THE DULY ELECTED AND ACTING SECRETARY OF THE CORPORATION AND
AS SUCH AM AUTHORIZED TO EXECUTE AND DELIVER THIS CERTIFICATE.
2.
ATTACHED HERETO AS EXHIBIT A ARE TRUE, CORRECT AND COMPLETE
COPIES OF THE RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE CORPORATION ADOPTED
ON AUGUST 9, 2005 (THE "RESOLUTIONS") RELATED TO THE NINTH AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT (THE "NINTH AMENDMENT") BETWEEN
CAPITALSOURCE FINANCE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, THE LENDERS
PARTY THERETO, AND THE CORPORATION, AND THE TRANSACTIONS CONTEMPLATED
THEREUNDER.
THE RESOLUTIONS HAVE NOT BEEN AMENDED, MODIFIED OR RESCINDED SINCE
THEIR ADOPTION AND REMAIN IN FULL FORCE AND EFFECT AS OF THE DATE HEREOF.
3.
EACH OF THE FOLLOWING INDIVIDUALS IS, AND WAS AT THE RESPECTIVE
TIMES OF THE EXECUTION AND DELIVERY OF THE NINTH AMENDMENT, A DULY ELECTED,
QUALIFIED AND ACTING OFFICER OF THE CORPORATION, DULY AUTHORIZED TO TAKE ANY
ACTION FOR AND ON BEHALF OF THE CORPORATION IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED BY THE NINTH AMENDMENT AND ANY AGREEMENTS OR DOCUMENTS RELATED
THERETO, AND THE SIGNATURE OPPOSITE HIS NAME BELOW IS THE GENUINE SIGNATURE OF
EACH SUCH OFFICER:
NAME
TITLE
SIGNATURE
Scott C. Wallace
Chief Executive Officer, President
and Chairman of the Board
/s/ Scott C. Wallace
Robert T. Trebing, Jr.
Senior Vice President, Chief
Financial Officer, Secretary and
Treasurer
/s/ Robert T. Trebing, Jr.
IN WITNESS WHEREOF, the undersigned has caused this Secretary's and Incumbency
Certificate to be executed on this 9th day of August 2005.
By:
/s/ Robert T.