Exhibit 10.1
WAIVER, AGREEMENT,
AMENDMENT NO. 1 TO 2008 WARRANT
&
AMENDMENT NO. 2 TO 2001
WARRANT
THIS WAIVER, AGREEMENT, AMENDMENT
NO. 1 TO 2008 WARRANT AND AMENDMENT NO. 2 TO 2001 WARRANT (this
“ Agreement ”) is made as of
November 10, 2008 by and between Sequoia Enterprises,
L.P., a California limited partnership (“ Lender
”), and Diedrich Coffee, Inc., a Delaware corporation (the
“ Company ”).
Reference is made to (i) that
certain Contingent Convertible Note Purchase Agreement, dated as of
May 10, 2004, by and between Lender and the Company (as
amended, the “ Note Purchase Agreement ”),
(ii) that certain Loan Agreement, dated as of August 26,
2008, by and between Lender and the Company (the “ Loan
Agreement ” and, together with the Note Purchase
Agreement, the “ Loan Documents ”),
(iii) that certain Warrant to purchase 1,667,000 shares of
Company common stock issued by the Company to Lender on
August 26, 2008 (the “ 2008 Warrant ”) and
(iv) that certain Warrant to purchase 250,000 shares of
Company common stock issued by the Company to Lender on May 8,
2001 (the “ 2001 Warrant ” and, together with
the 2008 Warrant, the “ Warrants ”). Capitalized
terms but not defined herein have the respective meanings ascribed
to them in the Note Purchase Agreement, the Loan Agreement, the
2008 Warrant or the 2001 Warrant, as applicable.
NOW, THEREFORE, in consideration of
the foregoing premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Lender and the Company agree as follows:
1. Waiver . Lender hereby
waives the requirement set forth in Section 9.4 of the Note
Purchase Agreement and Section 8.4 of the Loan Agreement that
the Company shall not permit, as of the end of any Fiscal Quarter,
the ratio of Indebtedness of the Company on a consolidated basis to
Effective Tangible Net
