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:
