EXHIBIT 10.11
NINTH AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS NINTH AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of
August 9, 2005 (the "Amendment"), is entered into by and between CAPITALSOURCE
FINANCE LLC, a Delaware limited liability company, in its capacity as
administrative agent and collateral agent for the Lenders under the Loan
Agreement referenced below ("Agent"), the Lenders party thereto, and
GARDENBURGER, INC., an Oregon corporation ("Borrower").
Capitalized terms used
and not otherwise defined herein are used as defined in the Loan Agreement (as
defined below).
WHEREAS, Agent, Lenders and Borrower have entered into that certain Revolving
Credit and Term Loan Agreement dated as of January 10, 2002, as amended by a
First Amendment to Revolving Credit and Term Loan Agreement dated as of
September 30, 2002, a Second Amendment to Revolving Credit and Term Loan
Agreement dated as of December 31, 2002, a Third Amendment to Revolving Credit
and Term Loan Agreement dated as of March 31, 2003, a Fourth Amendment to
Revolving Credit and Term Loan Agreement dated as of December 29, 2003, a Fifth
Amendment to Revolving Credit and Term Loan Agreement dated as of April 8, 2004,
a Sixth Amendment to Revolving Credit and Term Loan Agreement dated as of
August 13, 2004, a Seventh Amendment to Revolving Credit and Term Loan Agreement
dated as of November 29, 2004 and an Eighth Amendment to Revolving Credit and
Term Loan Agreement dated as of February 18, 2005 (as amended, supplemented,
modified and/or restated from time to time, the "Loan Agreement");
WHEREAS, Borrower has informed Agent and Lenders that Borrower has agreed to
prepay the Exit Fee on the date hereof in consideration for a discount with
respect to the Exit Fee;
WHEREAS, Borrower has requested that Agent and Lenders amend certain provisions
of the Loan Agreement, as provided herein; and
WHEREAS, subject to satisfaction of the conditions set forth herein, Agent and
Lenders are willing to permit prepayment of the Exit Fee at a discount and to
amend certain provisions of the Loan Agreement, in each case as provided herein.
NOW, THEREFORE, in consideration of the premises and the other mutual covenants
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
SECTION 1.
ACKNOWLEDGEMENTS OF OBLIGATIONS.
(A)
BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT IT IS UNCONDITIONALLY
LIABLE TO THE AGENT AND LENDERS UNDER THE TERMS OF THE LOAN AGREEMENT AND THE
OTHER LOAN DOCUMENTS FOR THE FULL PAYMENT OF ALL OF THE OBLIGATIONS INCLUDING,
WITHOUT LIMITATION, THOSE OBLIGATIONS SET FORTH ON SCHEDULE A ATTACHED HERETO
AND INCORPORATED HEREIN BY REFERENCE, PLUS ALL INTEREST, CHARGES, FEES, COSTS,
AND EXPENSES THAT MAY ARISE UNDER THE LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
PLUS ALL ATTORNEYS' FEES, DISBURSEMENTS AND COSTS OF COLLECTION INCURRED IN
CONNECTION WITH SUCH OBLIGATIONS BY AGENT AND LENDERS AND THAT BORROWER HAS NO
DEFENSES, COUNTERCLAIMS OR SET-OFFS WITH RESPECT TO THE FULL PAYMENT AND
PERFORMANCE OF ANY OR ALL OBLIGATIONS UNDER THE LOAN