EXECUTION COPY
EXHIBIT 10.1(h)
SEVENTH AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT
(hereinafter referred to as the "Amendment") is being executed and delivered as
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of October 31, 2000 by and among Einstein/Noah Bagel Corp., a Delaware
corporation formerly known as Einstein Bros. Bagels, Inc. (as debtor-in-
possession, the "Borrower"), Einstein/Noah Bagel Partners, L.P., a Delaware
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limited partnership (as debtor-in-possession, the "Partnership", each of the
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Borrower and the Partnership being hereinafter sometimes referred to
individually as a "Debtor" and hereinafter sometimes referred to collectively as
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"Debtors"), Einstein/Noah Bagel Partners, Inc., a California corporation
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formerly known as Noah's New York Bagels, Inc. (the "Corporate GP", and together
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with the Borrower and the Partnership, collectively, the "Credit Parties" and
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each individually a "Credit Party"), Bank of America, N.A. (as successor to Bank
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of America National Trust and Savings Association), as the "Agent" for the
Lenders (the "Agent"), General Electric Capital Corporation, as "Co-Agent" for
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the Lenders (the "Co-Agent"), and the financial institutions from time to time
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party to the Credit Agreement referred to and defined below (collectively, the
"Lenders", and each individually, a "Lender"). Undefined capitalized terms
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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, that certain Fourth Amendment and Waiver thereto dated as of
May 15, 1999, that certain Fifth Amendment and Waiver thereto dated as of
February 29, 2000, and that certain Restated Sixth Amendment and Waiver thereto
dated as of April 27, 2000 and restated as of June 15, 2000, in each case among
such parties, collectively, the "Credit Agreement"), pursuant to which the
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Lenders have agreed to provide, subject to the terms and conditions contained
therein, certain loans and other financial accommodations to the Borrower; and
WHEREAS, in connection with the Credit Agreement, and to provide
additional security for the Borrower's obligations thereunder, each of the
Partnership and the Corporate GP executed and delivered to the Agent, for the
benefit of the Lenders, certain guaranties, security agreements, pledge
agreements and other Loan Documents;
WHEREAS, on April 27, 2000, each of the Debtors filed with the United
States Bankruptcy Court for the District of Arizona (the "Bankruptcy Court")
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voluntary petitions for
relief under Chapter 11 of title 11 of the United States Code, 11 U.S.C.
(S)(S)101 et seq. and have continued in the possession of their assets pursuant
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to Sections 1107 and 1108 thereof;
WHEREAS, in connection with such filings and at the Debtors' request,
the Bankruptcy Court entered a final order authorizing the Borrower to borrow
Revolving Loans and to obtain Letters of Credit in a maximum aggregate principal
amount of $36,000,000 under the Credit Agreement subject to the terms and
conditions of such order, this Amendment, and the Loan Documents;
WHEREAS, pursuant to the Credit Agreement, such Revolving Loans and
Letters of Credit may be provided through and including the Termination Date,
after which date no additional Revolving Loans or Letters of Credit will be
available and upon which date all outstanding Revolving Loans and LC Obligations
must be repaid in full;
WHEREAS, the Termination Date is currently defined to occur upon the
earliest of (i) December 31, 2000, (ii) the date on which a plan of
reorganization in the Case becomes effective and (iii) the stated expiry date of
the Exit Financing Commitment;
WHEREAS, the Exit Financing Commitment expires as of the date hereof;
WHEREAS, the Borrower has obtained a substitute exit financing
commitment from another lender subject to the approval of the Bankruptcy Court,
a copy of which commitment is attached hereto as Exhibit A (the "Replacement
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Exit Financing Commitment"); and
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WHEREAS, the Borrower has requested that the Lenders agree, and
subject to the terms and conditions of this Amendment the Lenders have agreed,
to amend the Credit Agreement to allow for a substitution of the Replacement
Exit Financing Commitment for the existing Exit Financing Commitment and a
modification to the definitions of "Exit Financing Commitment" and "Termination
Date" to effect such substitution.
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 Credit Parties, the Lenders,
the Agent and the Co-Agent, such parties hereby agree as follows:
1. Amendment No. 7 to Credit Agreement. Subject to the satisfaction
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of each of the conditions set forth in Paragraph 2 of this Amendment, the Credit
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Agreement is hereby amended as follows (article and section references used
herein refer to those of the Credit Agreement):
(a) Article I is amended to delete the definitions of "Exit
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Financing Commitment" and "Termination Date" in their entirety and to replace
such definitions with the following definitions:
"'Exit Financing Commitment' means the commitment evidenced and
governed by that certain commitment letter dated October 26, 2000, as
modified by that certain letter agreement dated as of November 3, 2000,
copies of which are attached to
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that certain Seventh Amendment to this Agreement dated as of October 31,
2000 among the Borrower, the Partnership, the Corporate GP, the Agent, the
Co-Agent and the Lenders, as Exhibit A to such Seventh Amendment, or such
other commitment, in form and substance satisfactory to the Agent and the
Required Lenders, by a lender or financial institution to provide financing
to the Borrower upon or after the confirmation of a plan of reorganization
of the Borrower by the Bankruptcy Court pursuant to the Case, which
financing shall be in an amount equal to or greater than $57,750,000."
"'Termination Date' means the earliest to occur of (1) December
31, 2000; (2) the date on which a plan of reorganization in the Case
becomes effective, (3) the failure of the Bankruptcy Court to enter an
order approving the Exit Financing Commitment on or before November 9, 2000
and (4) the expiration of the Exit Financing Commitment."
(b) Section 6.18(g) is deleted in its entirety and replaced with the
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following provision:
"(g) Amend or otherwise modify the Exit Financing Commitment in
any manner to impose additional conditions, covenants or other requirements
upon the Borrower or its Subsidiaries or the Lenders, or to change the
stated expiration date set forth therein to an earlier date, or to make any
existing conditions, covenants or other requirements more onerous to the
Borrower or its Subsidiaries or the Lenders."
2. Effectiveness of this Amendment; Conditions Precedent. The
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provisions of Paragraph 1 hereof shall be deemed to have become effective as of
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the date hereof, but such effectiveness shall be expressly conditioned upon the
Agent's receipt of an originally-executed counterpart of this Amendment executed
and delivered by a duly authorized officer of the Credit Parties and the
Lenders.
3. Representations and Warranties. Each Credit Party hereby
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represents and warrants that:
(a) this Amendment constitutes the legal, valid and binding
obligation of each Credit Party enforceable against such Credit Party in
accordance with its terms;
(b) each Credit Party's execution and delivery of this Amendment, and
its performance hereafter of the Loan Documents as modified by this Amendment,
have been duly authorized by all necessary corporate or partnership action, do
not violate any provision of its certificate of incorporation, bylaws,
partnership agreement or other organizational 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 (including, without limitation,
the approval of the Bankruptcy Court), and except as may have otherwise been
heretofore obtained, will not require the approval or consent of any third party
under the terms of any contract or agreement to which any Credit Party or any
Subsidiary or other Affiliate of any Credit Party is bound;
(c) no Default has occurred and is continuing or will have occurred
and be continuing and all of the representations and warranties of each Credit
Party contained in the Credit Agreement and the other Loan Documents (other than
such representations or warranties
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which, in accordance with their express terms, are made only as of a specified
date) are, and will be, true and correct as of the date of the Credit Parties'
execution hereof in all material respects as though made on and as of such date.
4. Reference to and Effect on Credit Agreement and Other Loan
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Documents. The Credit Agreement and each of the other Loan Documents, as
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amended hereby, shall remain in full force and effect and are hereby ratified
and confirmed. Neither the execution, delivery nor effectiveness of this
Amendment shall operate as a waiver of any right, power or remedy of the Agent
or any Lender of any Default under the Credit Agreement, all of which the Agent
and the Lenders hereby expressly reserve. The Credit Parties, the Lenders and
the Agent agree and acknowledge that this Amendment constitutes a "Loan
Document" under and as defined in the Credit Agreement.
5. Governing Law. This Amendment shall be governed by and construed
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in accordance with the laws and decisions of the State of Illinois.
6. Agents' Expenses. The Borrower hereby agrees that the Agent has
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been authorized by the Borrower to charge all the reasonable out-of-pocket fees
and expenses (including, without limitation, attorneys' and paralegals' fees, it
or the Co-Agent has heretofore or hereafter incurred or incurs in connection
with the preparation, negotiation and execution of this Amendment) to the
Borrower's Account, which authorization is hereby ratified and confirmed by the
Borrower.
7. Reaffirmations by the Partnership and the Corporate GP. The
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Partnership and the Corporate GP, in their respective capacities as guarantors,
pledgors, grantors, contributors, or other providers of financial accommodations
under the terms of the Loan Documents (including, without limitation, under that
certain Guaranty dated as of May 17, 1996 executed and delivered by the
Corporate GP in favor of the Agent and the Lenders, that certain Guaranty dated
as of December 5, 1997 executed and delivered by the Partnership in favor of the
Agent and the Lenders, and each of the other Loan Documents to which the
Corporate GP or the Partnership is a party), hereby each reaffirms and ratifies
each of its obligations, covenants, guaranties, grants of security interests,
pledges, grants of liens and other undertakings and accommodations under the
Loan Documents to which it is a party, all of which shall hereafter remain in
full force and effect, with respect to both Pre-Petition Obligations and Post-
Petition Obligations. Each of the Partnership and the Corporate GP hereby
further agrees to carry out each term, provision, covenant and condition of the
Credit Agreement as modified by Paragraph 1 of this Amendment. Each of the
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Partnership and the Corporate GP hereby agree and acknowledge it is truly and
justly indebted as a guarantor with respect to all Pre-Petition Obligations and
Post-Petition Obligations of the Borrower, without setoff, defense or
counterclaim.
8. Counterparts. This Amendment may be executed in counterparts,
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each of which shall be an original and all of which together shall constitute
one and the same agreement among the parties.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first above written.
EINSTEIN/NOAH BAGEL CORP., as debtor and debtor-
in-possession
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Sr. Vice President,
General Counsel & Secretary
EINSTEIN/NOAH BAGEL PARTNERS, L.P., as debtor and
debtor-in-possession
By: EINSTEIN/NOAH BAGEL PARTNERS, INC., as General
Partner
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President & Secretary
EINSTEIN/NOAH BAGEL PARTNERS, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President & Secretary
BANK OF AMERICA, N.A.., as the Agent
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.., as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
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GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender
and as Co- Agent
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Senior Risk Manager
LASALLE BANK NATIONAL ASSOCIATION, (as successor
to LaSalle National Bank), as a Lender
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: First Vice President
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