EXHIBIT 10.1
EIGHTH AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS EIGHTH AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of
February 18, 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, the 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 and a Seventh Amendment to Revolving Credit and Term Loan
Agreement dated as of November 29, 2004 (as amended, supplemented, modified
and/or restated from time to time, the "Loan Agreement");
WHEREAS, Borrower has requested that Agent and Lenders amend the Loan Agreement
and waive certain Events of Default, all as provided herein; and
WHEREAS, subject to satisfaction of the conditions set forth herein, Agent and
the Lenders are willing to amend the Loan Agreement 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.
ACKNOWLEDGEMENT OF OBLIGATIONS.
(A)
BORROWER HEREBY ACKNOWLEDGES AND AGREES
THAT BASED ON THE SPECIFIED EVENTS OF DEFAULT (AS DEFINED BELOW), IT IS
UNCONDITIONALLY LIABLE TO THE AGENT AND LENDERS FOR THE FULL AND IMMEDIATE
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 AND IMMEDIATE PAYMENT AND
PERFORMANCE OF ANY OR ALL OBLIGATIONS UNDER THE LOAN AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(B)
BORROWER ACKNOWLEDGES AND AGREES THAT (I)
THE SPECIFIED EVENTS OF DEFAULT CONSTITUTE MATERIAL DEFAULTS UNDER THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS, (II) ANY NOTICES THAT MIGHT BE GIVEN AND
ANY GRACE PERIODS OR CURE PERIODS WHICH MUST EXPIRE, PRIOR TO AGENT OR LENDERS
EXERCISING ANY OF