Exhibit 10.3
AMENDMENT NO. 1 TO AMENDED AND
RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 1 TO AMENDED
AND RESTATED CREDIT AGREEMENT (this “ Amendment
”) is entered into as of December
, 2007, by
the lenders identified on the signature pages hereof, WELLS
FARGO FOOTHILL, INC., a California corporation, as the arranger
and administrative agent for the lenders who are from time to time
a party to the below referenced Credit Agreement (in such capacity,
together with its successors and assigns in such capacity,
“Administrative Agent ”), and EINSTEIN NOAH
RESTAURANT GROUP, INC., a Delaware corporation (formerly known
as New World Restaurant Group, Inc.) (“ Borrower
”) with reference to the following:
WITNESSETH
WHEREAS, Borrower, the Administrative Agent and the
several banks and other financial institutions or entities party
thereto are parties to that certain Amended and Restated Credit
Agreement, dated as of June 28, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”);
WHEREAS, Borrower has requested that the Administrative
Agent and the Required Lenders consent to the amendment of the
Credit Agreement as set forth below; and
WHEREAS, subject to the terms and conditions set forth
herein, the Lender Group is willing to so consent to the amendment
of the Credit Agreement.
NOW, THEREFORE,
for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties agree to amend the Credit Agreement as follows:
1. Defined Terms .
Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement,
as amended hereby.
2. Amendment to Credit
Agreement .
(a) Section 1.1 to the
Credit Agreement is hereby amended by amending and restating the
following definition in its entirety:
“ Capital Expenditures
”: for any period, with respect to any Person, without
duplication, (i) the aggregate of all expenditures by such
Person and its Subsidiaries for the acquisition of fixed or capital
assets or additions to equipment (including replacements,
capitalized repairs and improvements) during such period, in each
case, that should be capitalized under GAAP on a consolidated
balance sheet of such Person and its Subsidiaries, and
(ii) Capital Lease Obligations incurred by such Person and its
Subsidiaries during such period, provided that (a) the
cost of any Investment permitted under Sections 8.8(k) or
8.8(l) shall not constitute a Capital Expenditure by the
Borrower or any of its Subsidiaries, (b) a Capital Expenditure
funded with Reinvestment Deferred Amounts shall not constitute a
Capital Expenditure and (c) a Capital Expenditure made to the
extent either (i) reimbursed by a landlord that is not a
Subsidiary or Affiliate of Borrower (a “ Third Party
Landlord ”), (ii) paid directly by a Third Party
Landlord or (iii) the funds therefor were paid by a Third
Party Landlord to Borrower or any of its Subsidiaries prior to such
expenditure, shall not constitute a Capital
Expenditure.”
3. Conditions Precedent to
Amendment . The satisfaction of each of the following shall
constitute conditions precedent to the effectiveness of this
Amendment and each and every provision hereof, and this Amendment
shall be effective as of the date upon which such conditions
precedent shall be satisfied (such date being the “
Effective Date ”):
(a) Administrative Agent shall have
received this Amendment, duly executed by the Borrower, the
Administrative Agent, and the Required Lenders, and the same shall
be in full force and effect.
(b) Administrative Agent shall have
received a reaffirmation and consent substantially in the form
attached hereto as Exhibit A , duly executed and delivered
by each Subsidiary Guarantor.
(c) The representations and
warranties herein and in the Credit Agreement and the other Loan
Documents shall be true and correct in all material respects
(except that such materiality qualifier shall not be applicable to
any representations and warranties that already are qualified or
modified by materiality in the text thereof) on and as of the date
hereof, as though made on such date (or, to the extent that such
representations and warranties relate solely to an earlier date, on
and as of such earlier date).
(d) No Default or Event of Default
shall have occurred and be continuing on the date hereof, nor shall
immediately result from the consummation of the transactions
contemplated herein.
(e) No injunction, writ, restraining
order, or other order of any nature prohibiting, directly or
indirectly, the consummation of the transactions contemplated
herein shall have been issued and remain in force and effect by any
Governmental Authority against Borrower, any Subsidiary Guarantor,
Administrative Agent, or any Lender.
4. Representation and
Warranties . Borrower hereby makes each of the following
representations and warranties to the Lender Group:
(a) The representations and
warranties herein and in the Credit Agreement and the other Loan
Documents are true and correct in all material respects (except
that such materiality qualifier shall not be applicable to any
representations and warranties that already are qualified or
modified by materiality in the text thereof) on and as of the date
hereof, as though made on such date (or, to the extent that such
representations and warranties relate solely to an earlier date, on
and as of such earlier date).
(b) No Default or Event of Default
has occurred and is continuing on the date hereof, nor shall
immediately result from the consummation of the transactions
contemplated herein.
(c) No injunction, writ, restraining
order, or other order of any nature prohibiting, directly or
indirectly, the consummation of the transactions contemplated
herein shall have been issued and remain in force and effect by any
Governmental Authority against Borrower or any Subsidiary
Guarantor.
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5. Expenses . Borrower
agrees to pay all costs and expenses of Administrative Agent in
connection with the preparation, negotiation, execution, delivery
and administration of this Amendment and all other instruments or
documents provided for herein or delivered or to be delivered
hereunder or in connection herewith, in each case to the extent set
forth in the Credit Agreement. All obligations provided in this
Paragraph 5 shall survive any termination of this Amendment and the
Credit Agreement.
6. Choice of Law . The
validity of this Amendment, its construction, interpretation and
enforcement and the rights of the parties hereunder, shall be
determined under, governed by, and construed in accordance with the
laws of the State of New York.
7. Counterpart Execution
. This Amendment may be executed in any number of counterparts,
all of which when taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this
Amendment by signing any such counterpart. Delivery of an executed
counterpart of this Amendment by telefacsimile or electronic mail
shall be equally as effective as delivery of an original executed
counterpart of this Amendment. Any party delivering an executed
counterpart of this Amendment by telefacsimile or electronic mail
also shall deliver an original executed counterpart of this
Amendment, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability and
binding effect of this Amendment.
8. Effect on Loan
Documents .
(a) The Credit Agreement, as amended
hereby, and each of the other Loan Documents shall be and remain in
full force and effect in accordance with their respective terms and
are hereby ratified and confirmed in all respects. The execution,
delivery, and performance of this Amendment shall not operate,
except as expressly set forth herein, as a modification or waiver
of any right, power, or remedy of Administrative Agent or any
Lender under the Credit Agreement or any other Loan Document. The
waivers, consents and modifications herein are limited to the
specifics hereof, shall not apply with respect to any facts or
occurrences other than those on which the same are based, shall not
excuse future non-compliance with the Loan Documents and shall not
operate as a consent to any further or other matter under the Loan
Documents.
(b) Upon and after the effectiveness
of this Amendment, each reference in the Credit Agreement to
“this Agreement”, “hereunder”,
“herein”, “hereof’ or words of like import
referring to the Credit Agreement, and each reference in the other
Loan Documents to “the Credit Agreement”,
“thereunder”, “therein”,
“thereof’ or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit
Agreement as modified and amended hereby.
(c) To the extent that any terms and
conditions in any of the Loan Documents shall contradict or be in
conflict with any terms or conditions of the Credit Agreement,
after giving effect to this Amendment, such terms and conditions
are hereby deemed modified or amended accordingly to reflect the
terms and conditions of the Credit Agreement as modified or amended
hereby.
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(d) This Amendment is a Loan
Document.
9. Entire Agreement .
This Amendment embodies the entire understanding and agreement
between the parties hereto with respect to the subject matter
hereof and supersedes any and all prior or contemporaneous
agreements or understandings with respect to the subject matter
hereof, whether express or implied, oral or written.
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