AND EFFECT AND IS HEREBY
RATIFIED AND CONFIRMED.
(H)
ALL REPRESENTATIONS AND WARRANTIES MADE IN
THIS AMENDMENT SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS AMENDMENT AND NO
INVESTIGATION BY AGENT OR LENDERS SHALL AFFECT SUCH REPRESENTATIONS OR
WARRANTIES OR THE RIGHT OF AGENT OR LENDERS TO RELY UPON THEM.
(I)
BORROWER HEREBY ACKNOWLEDGES AND AGREES
THAT IT KNOWS OF NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR
DEMAND OF ANY KIND OR NATURE WHATSOEVER ORIGINATING ON OR BEFORE THE DATE THIS
AMENDMENT IS EXECUTED THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY
PART OF ITS LIABILITY TO REPAY THE OBLIGATIONS OR TO SEEK AFFIRMATIVE RELIEF OR
DAMAGES OF ANY KIND OR NATURE FROM AGENT AND THE LENDERS.
BORROWER HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES AGENT, THE LENDERS AND
EACH OF THEIR RESPECTIVE PREDECESSORS, AGENTS, EMPLOYEES, AFFILIATES, COUNSEL,
SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "RELEASED PARTIES") FROM ALL POSSIBLE
KNOWN CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES AND
LIABILITIES WHATSOEVER, FIXED, CONTINGENT OR CONDITIONAL, OR AT LAW OR IN
EQUITY, IN ANY CASE ORIGINATING ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED
THAT BORROWER MAY NOW OR HEREAFTER HAVE AGAINST THE RELEASED PARTIES, 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 OF THE LOANS, THE
EXERCISE OF ANY 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 10(I) SHALL APPLY WITH RESPECT TO ANY WILLFUL MISCONDUCT OR BAD FAITH BY
THE RELEASED PARTIES.
[Signature Page Follows]
12
IN WITNESS WHEREOF, the parties have caused this Eighth 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 Group
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 February 16, 2005)*
Revolving Credit Loans:
$
4,281,739.56
Term Loan:
$
4,028,161.00
*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 1
(Form of Amended and Restated Revolving Note)
EXHIBIT 3(d)
(Executed Amended and Restated Notes)
EXHIBIT 3(e)
(Seventh Amendment to Note Purchase Agreement)
EXHIBIT 4(b)(i)
(Liens to be Terminated)
1.
Banc of America Commercial Finance
filed a UCC-1 with the County of Multnomah, Oregon covering substantially all of
the assets of Borrower, including property at lots 1 and 2, Block 172, Hawthorne
Park, Multnomah County, Oregon