EXHIBIT 10.17
SIXTH
AMENDMENT TO
NOTE PURCHASE
AGREEMENT
THIS SIXTH
AMENDMENT (this “ Amendment ”), dated as of
August 13, 2004, to the Note Purchase Agreement, dated as of March
27, 1998, by and among DRESDNER KLEINWORT BENSON PRIVATE EQUITY
PARTNERS LP, a Delaware limited partnership (the “
Purchaser ”), and GARDENBURGER, INC., an Oregon
corporation (the “ Company ”).
WHEREAS, the
parties hereto have entered into the Note Purchase Agreement, dated
as of March 27, 1998 (as amended, modified or restated from time to
time, the “ Agreement ”), a First Amendment to
Note Purchase Agreement dated as of December 23, 1999 (the “
First Amendment ”), a Second Amendment to Note
Purchase Agreement dated as of January 10, 2002 (the “
Second Amendment ”), a Third Amendment to Note
Purchase Agreement dated as of September 20, 2002 (the “
Third Amendment ”), and a Fourth Amendment to Note
Purchase Agreement dated as of December 31, 2002 (the “
Fourth Amendment ”), and a Fifth Amendment to Note
Purchase Agreement dated as of December 29, 2003 (the “
Fifth Amendment ”); unless otherwise defined
herein, all capitalized terms used herein (including the recitals)
shall have the meanings assigned to such terms in the Agreement, as
amended by the First, Second, Third, Fourth and Fifth Amendments
and hereby;
WHEREAS, the
Company has entered into a Revolving Credit and Term Loan Agreement
dated as of January 10, 2002, with CapitalSource Finance LLC
as a lender and as agent (“ CapitalSource
”);
WHEREAS, the
Company and CapitalSource are contemporaneously entering into a
Sixth Amendment to Revolving Credit and Term Loan Agreement dated
as of August , 2004, in substantially the form
attached hereto as Exhibit A (the “
CapitalSource Sixth Amendment ”);
and
WHEREAS, the
Company has requested the Purchaser to amend the Agreement on the
terms and conditions set forth in this Amendment;
NOW, THEREFORE, in
consideration of the premises and the agreements, provisions, and
covenants contained herein, the parties hereto agree as
follows:
1. Amendments
. Effective as of August , 2004, subject to
the conditions herein, the Agreement is amended as
follows:
(a)
The financial covenant contained in subparagraph 2D(b)(iii) of the
Agreement as amended by the Second, Fourth and Fifth Amendments is
hereby amended and restated in its entirety to read as
follows:
“(iii)
SENIOR FIXED CHARGE COVERAGE RATIO
The Senior Fixed Charge
Coverage Ratio for each Quarterly Test Period set forth below shall
be not less than the ratios specified below:
|
Quarterly
Test Period
|
|
Amount
|
|
|
September 30,
2004
|
|
1.215:1.00
|
|
|
December 31,
2004
|
|
1.13:1.00
|
|
|
March 31, 2005
|
|
1.33:1.00
|
|
|
June 30, 2005
|
|
1.41:1.00”
|
|
(b)
The financial covenant contained in subparagraph 2D(b)(v) of the
Agreement as amended by the Second, Fourth and Fifth Amendments is
hereby amended and restated in its entirety to read as
follows:
“(v)
CAPITAL EXPENDITURES
The
Company shall not permit its Capital Expenditures in the aggregate
to exceed (i) $1,600,000 for the fiscal year ending
on
