LIMIT OR
DIMINISH THE OBLIGATIONS OF BORROWER UNDER THE LOAN DOCUMENTS, (II) REAFFIRMS
ITS OBLIGATIONS 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 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
LENDER SHALL AFFECT SUCH REPRESENTATIONS OR WARRANTIES OR THE RIGHT OF LENDER 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 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 LENDER.
BORROWER HEREBY VOLUNTARILY AND KNOWINGLY
RELEASES AND FOREVER DISCHARGES LENDER AND EACH OF ITS PREDECESSORS, AGENTS,
EMPLOYEES, AFFILIATES, COUNSEL, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE
"RELEASED PARTIES") FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
ACTION, DAMAGES, COSTS, EXPENSES AND LIABILITIES WHATSOEVER, FIXED, WHETHER
KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED,
CONTINGENT OR CONDITIONAL, OR AT LAW OR IN EQUITY, IN ANY CASE ORIGINATING IN
WHOLE OR PART 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
SHALL APPLY WITH RESPECT TO ANY WILLFUL MISCONDUCT OR BAD FAITH BY THE RELEASED
PARTIES.
[Signature Page Follows]
17
IN WITNESS WHEREOF, the parties have caused this Ratification and Amendment
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
LENDER:
CAPITALSOURCE FINANCE LLC
By:
/s/ Joseph Turitz
Name:
Joseph Turitz
Title:
General Counsel - Corporate Finance
BORROWER:
GARDENBURGER, INC.
By:
/s/ Scott C. Wallace
Name:
Scott C. Wallace
Title:
President and Chief Executive Officer