EXHIBIT 10.1(f)
FIFTH AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT
AGREEMENT ("Agreement") is being executed and delivered as of February 29, 2000,
---------
by and among Einstein/Noah Bagel Corp., a Delaware corporation (the "Borrower"),
--------
the financial institutions from time to time party to the Credit Agreement
referred to and defined below (collectively, the "Lenders", and each
-------
individually, a "Lender"), Bank of America, N.A. (as successor to Bank of
------
America National Trust and Savings Association), as the "Agent" for the Lenders
(the "Agent") and General Electric Capital Corporation, as "Co-Agent" for the
-----
Lenders (the "Co-Agent"). Undefined capitalized terms which are used herein
shall have the meanings ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Agent and the Co-Agent are
parties to that certain Amended and Restated Secured Credit Agreement dated as
of November 21, 1997 (as heretofore amended and modified by that certain First
Amendment and Waiver thereto dated as of March 27, 1998, that certain Consent
thereto dated as of May 7, 1998, that certain Second Amendment thereto dated as
of October 4, 1998, that certain Third Amendment and Waiver thereto dated as of
January 29, 1999, and that certain Fourth Amendment and Waiver thereto dated as
of May 15, 1999, in each case among such parties, collectively, the "Credit
------
Agreement"), pursuant to which the Lenders have agreed to provide, subject to
---------
the terms and conditions contained therein, certain loans and other financial
accommodations to the Borrower; and
WHEREAS, the Borrower has requested, and subject to the terms and
conditions of this Agreement the Lenders and the Agent have agreed, (i) to amend
the maximum allowed Senior Indebtedness to Annualized System EBITDAL ratio for
the Borrower's credit usage test under Section 5.13 of the Credit Agreement for
------------
its first fiscal quarter of 2000, (ii) to waive the Borrower's compliance with
its minimum required average weekly per store net revenue test under Section 7.1
-----------
of the Credit Agreement for its 1st and 2nd Retail Periods of 2000 and (iii) to
amend the definition of Total Revolving Loan Commitment to temporarily increase
such amount by $1,000,000 for the period March 1, 2000 through April 30, 2000.
NOW, THEREFORE, in consideration of the foregoing premises, the terms
and conditions stated herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Borrower, the Lenders, the
Agent, and the Co-Agent, such parties hereby agree as follows:
1. Amendment to Credit Agreement. Subject to Paragraph 3 of this
----------------------------- -----------
Agreement, and effective as of the date of this Agreement, the Credit Agreement
is hereby amended as follows (section and schedule references herein refer to
those of the Credit Agreement):
(a) Article I is amended to delete in its entirety the definition of
---------
"Total Revolving Loan Commitment Amount" set forth therein and to replace such
--------------------------------------
definition with the following definition:
"Total Revolving Loan Commitment" means, subject to modification
thereof pursuant to Section 2.1(1), (1) $26,000,000 at all times during the
--------------
period commencing on March 1, 2000 and ending on April 30, 2000 and (2)
$25,000,000 at all other times.
(b) Section 2.8 is amended to add the following provisions to the
-----------
end of such section:
"Without limiting the foregoing, on each Business Day on or after March 13,
2000, the Borrower shall additionally repay the outstanding principal
balance of the Revolving Loans in an amount substantially equal to the
gross amount of all cash received by the Borrower and its Subsidiaries on
or before such Business Day which is available for withdrawal by the
Borrower's and its Subsidiaries' from their respective deposit accounts as
of such Business Day."
(c) Section 5.13(1) is amended to delete in its entirety from the
---------------
schedule of periods and ratios set forth therein the reference to the period
"Fiscal Year 2000" and the corresponding ratio maximum ratio of "1.50:1.00", and
to replace such references with the following:
"1/st/ Fiscal Quarter, 2000 1.75:1.00
2/nd/ Fiscal Quarter, 2000 and
each Fiscal Quarter thereafter 1.50:1.00"
(d) Schedule 1.1(C) of the Credit Agreement is deleted in its
---------------
entirety.
2. Waiver. Subject to Paragraph 3 of this Agreement, the Lenders
------ -----------
hereby waive any violation of, Default, Event of Default or representation or
warranty as to the absence of any of the foregoing, in each case in respect of
any failure by Borrower to comply with its minimum required average weekly per
store net revenue test under Section 7.1 of the Credit Agreement for its 1st or
-----------
2nd Retail Periods of 2000; provided, however, that, such waivers shall only be
-------- -------
effective if the Borrower has achieved an average weekly net revenue for all
Stores (whether operated by the Borrower or a Franchisee) of not less than
$11,900 per Store during its 1st Retail Period and not less than $12,900 per
Store during its 2nd Retail Period.
3. Effectiveness of this Agreement; Conditions Precedent. The
-----------------------------------------------------
provisions of Paragraphs 1 and 2 shall be deemed to have become effective as of
------------ -
the date of this Agreement, but such effectiveness shall be expressly
conditioned upon the Agent's receipt of (a) an originally-executed counterpart
(or facsimile thereof) of this Agreement executed by a duly authorized officer
of the Borrower and by duly authorized officers of each of the Lenders, (b)
payment in full of the $1,500,000 principal payment with respect to the Term
Loan which is due and payable on March 1, 2000, together with all accrued
interest thereon (or assurances acceptable to the Agent that such payment is in
the process of being made by the Borrower and will be irrevocably received by
the Agent in full on the date of the Agent's receipt of such assurances), and
(c) payment in full of the "Amendment Fee" referred to and defined below in
Paragraph 4 below, in immediately available funds.
-----------
4. Amendment Fee. Upon the execution and delivery of this Agreement
-------------
by the Borrower and the Lenders, the Borrower shall pay to the Agent, for the
ratable benefit of the Lenders, an amendment fee in the amount of $25,000
("Amendment Fee"), which fee shall be payable in immediately available funds and
-------------
shall be fully-earned and nonrefundable upon such execution and delivery by the
Borrower and the Lenders.
5. Representations, Warranties and Covenants. (a) The Borrower
-----------------------------------------
hereby represents and warrants that this Agreement constitutes the legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
(b) The Borrower hereby represents and warrants that its execution
and delivery of this Agreement, and its performance hereafter of the Credit
Agreement as modified by this Agreement, have been duly authorized by all
necessary corporate action, do not violate any provision of its certificate of
incorporation, bylaws or other charter documents, will not violate any law,
regulation, court order or writ applicable to it, will not require the approval
or consent of any governmental agency, and do not require the approval or
consent of any third party under the terms of any contract or agreement to which
the Borrower or any of its Subsidiaries is bound.
(c) The Borrower hereby represents and warrants that, after giving
effect to all of the provisions of this Agreement, (i) no Default or Event of
Default has occurred and is continuing or will have occurred and be continuing
and (ii) all of the representations and warranties of the Borrower contained in
the Credit Agreement (other than representations and warranties which, in
accordance with their express terms, are made only as of an earlier specific
date) are, and will be, true and correct as of the date of the Borrower's
execution hereof in all material respects as though made on and as of such date.
6. Reference to and Effect on Credit Agreement. The Credit Agreement
-------------------------------------------
shall remain in full force and effect and is hereby ratified and confirmed.
Except as expressly provided in Paragraph 2 hereof, neither the execution,
-----------
delivery nor effectiveness of this Agreement shall operate as a waiver of any
right, power or remedy of the Agent or any Lender of any Default or Event of
Default under the Credit Agreement, all of which the Agent and the Lenders
hereby expressly reserve. Nothing contained herein shall require the Agent or
the Lender to hereafter waive any Default or Event of Default, or to further
amend any provisions of any Loan Document, whether or not similar to the waivers
or amendments effected by this Agreement. The Borrower, the Lenders and the
Agent agree and acknowledge that this Agreement constitutes a "Loan Document"
under and as defined in the Credit Agreement.
7. Reaffirmation, Ratification and Acknowledgment. By its execution
----------------------------------------------
below, each of Einstein/Noah Bagel Partners, Inc. and Einstein/Noah Bagel
Partners, L.P. (collectively, the "Guarantors") hereby (a) ratifies and
----------
reaffirms all of its payment and performance
obligations, contingent or otherwise, and each grant of security interests and
liens in favor of the Agent, under each Loan Document to which it is a party,
(b) agrees and acknowledges that such ratification and reaffirmation is not a
condition to the continued effectiveness of such Loan Documents and (c) agrees
that neither such ratification and reaffirmation, nor the Agent's, or any
Lender's solicitation of such ratification and reaffirmation, constitutes a
course of dealing giving rise to any obligation or condition requiring a similar
or any other ratification or reaffirmation from the Borrower or such other Loan
Parties with respect to any subsequent modifications to the Credit Agreement or
the other Loan Documents.
8. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws and decisions of the State of Illinois.
9. Agent's Expenses. The Borrower hereby agrees to promptly
----------------
reimburse the Agent for all of the reasonable out-of-pocket expenses, including,
without limitation, attorneys' and paralegals' fees, it has heretofore or
hereafter incurred or incurs in connection with the preparation, negotiation and
execution of this Agreement.
10. Changes in Notice Addresses. Pursuant to Section 10.2 of the
--------------------------- ------------
Credit Agreement, the Borrower hereby notifies each of the other parties to the
Credit Agreement that all notices and other communications to the Borrower under
the Credit Agreement and the other Loan Documents shall be provided to the
Borrower's new address at Einstein/Noah Bagel Corp., 0000 Xxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, telephone: 000-000-0000,
facsimile: 000-000-0000.
11. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be an original and all of which together shall constitute
one and the same agreement among the parties.
* * * *
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
day and year first above written.
EINSTEIN/NOAH BAGEL CORP.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------
Title: Sr Vice Pres.
--------------------------
EINSTEIN/NOAH BAGEL PARTNERS, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------
Title: Vice Pres.
--------------------------
EINSTEIN/NOAH BAGEL PARTNERS, L.P.
By: EINSTEIN/NOAH BAGEL PARTNERS,
INC., as General Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------
Title: Vice Pres.
--------------------------
BANK OF AMERICA, N.A. (as successor to
Bank of America National Trust and
Savings Association), as Agent
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxxx X. Xxxx
--------------------------
Title: Assistant Vice President
--------------------------
BANK OF AMERICA, N.A. (as successor to
Bank of America National Trust and
Savings Association), as a Lender
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------
Title: Senior Vice President
--------------------------
GENERAL ELECTRIC CAPITAL CORPORATION, as
a Lender and as Co-Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------
Title: Vice President
--------------------------
LASALLE BANK NATIONAL ASSOCIATION (as
successor to LaSalle National Bank), as
a Lender
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
--------------------------
Title: Vice President
--------------------------
