EXHIBIT 2.1(b)
ENB Acquisition LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx 0, 0000
Xxxxxxxx/Xxxx Bagel Corp.
0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Senior Vice President
and General Counsel
Agreement to Amend and Waive Certain Provisions of the Asset Purchase Agreement
dated as of February 10, 2001 (the "Purchase Agreement")
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Dear Xx. Xxxxxxx:
This letter (this "Letter"), consistent with the terms of Section 11.2
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of the Purchase Agreement, sets forth the agreement between Einstein/Noah Bagel
Corp., Xxxxxxxx Xxxx Partners, L.P. (collectively, "Einstein/Noah") and ENB
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Acquisition LLC ("ENB") to amend and waive certain provisions of the Purchase
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Agreement in the manner set forth herein. Capitalized terms not otherwise
defined in this Letter shall have the meaning set forth in the Purchase
Agreement.
1. Assumed Contracts. Section 1.1.4 of the Purchase Agreement shall
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be deleted in its entirety and replaced with the following:
"1.1.4 Assumed Contracts. To the extent such Contracts are
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assignable under the Bankruptcy Code, all of either Seller's
right title and interest in and to or under all Contracts,
including without limitation that certain Commercial
Insurance Premium Finance and Security Agreement between E/N
Corp. and Canonwill, Inc. dated as of February 28, 2001,
(the "Premium Financing Contract"), other than Excluded
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Contracts listed on Schedule 1.2.3 (the "Assumed
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Contracts")."
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2. Allocation of Purchase Price. Section 2.1(d) of the Purchase
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Agreement shall be deleted in its entirety and replaced with the following:
"(d) Allocation of Purchase Price. The Purchase Price shall
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be allocated for tax purposes among the Purchased Assets in
a manner to be determined by Buyer and Sellers based on the
advice or recommendation of a nationally recognized
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appraisal firm. Sellers and Buyer agree to use the
allocations determined pursuant to this Section 2.1(d) for
all tax purposes, including without limitation, those
matters subject to Section 1060 of the Internal Revenue Code
of 1986, as amended."
3. Assumed Liabilities. The final paragraph of Section 2.2 of the
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Purchase Agreement shall be deleted in its entirety and replaced with the
following:
The liabilities described in Sections 2.2(a) and 2.2(b)
shall hereinafter be referred to as the "Assumed Current
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Liabilities". The Assumed Current Liabilities and the
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liabilities described in Section 2.2(c), shall hereinafter
be referred to collectively as the "Assumed Total
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Liabilities"; provided, however that, the current liability
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portion of the Assumed Contracts (except with respect to the
Premium Financing Contract) and Assumed Real Property Leases
shall be included in the Assumed Current Liabilities. Other
than the Assumed Total Liabilities, no indebtedness,
obligation or liability of Sellers is assumed by Buyer,
including without limitation any liability for the payment
of (i) any professional person retained in the Cases, (ii)
any Taxes of the Sellers for any period through the day
before the Closing Date, or (iii) any liability for inter-
Seller payables."
4. Operation of Business. Section 6.2(xv) of the Purchase Agreement
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shall be deleted in its entirety and replaced with the following:
(xv) provide prompt notice to Buyer of (a) any losses or
damages in excess of an aggregate of $100,000 suffered by
Sellers with respect to the Purchased Assets whether or not
such losses or damages are covered by insurance, (b) any
material legal proceeding commenced by or against Sellers or
any motion or pleading filed in such cases (other than
proceedings in the Cases), and (c) any material legal
proceeding commenced or, to the best knowledge of Sellers,
threatened against Sellers relating to the transactions
contemplated by this Agreement or relating to any of the
Purchased Assets;
5. Section 6.6. Section 6.6 of the Purchase Agreement shall be
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deleted in its entirety and replaced with the following:
"6.6 HSR Filings. If required by law, each party shall
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promptly, and in no event later than twenty (20) business
days following the date the Preliminary Order is entered by
the Bankruptcy Court, make its respective filing under the
HSR Act, and thereafter make any other required submissions
under the HSR Act and use reasonable commercial efforts and
diligence to satisfy any other conditions necessary to comply
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with the HSR Act and to obtain an early termination of any
waiting period pursuant thereto."
6. Section 6.7. Section 6.7 of the Purchase Agreement shall be
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deleted in its entirety and replaced with the following:
"6.7 Preliminary Order. As promptly as practicable after the date
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hereof, Sellers will file with the Bankruptcy Court a motion and supporting
papers in form and substance reasonably acceptable to Buyer's counsel seeking
the Bankruptcy Court's approval of the terms of Sections 6.8, 10.1 and 10.2 of
this Agreement and Sellers' observance and performance of such terms (the
"Preliminary Order").
7. Preliminary Order. Section 6.10 of the Purchase Agreement shall
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be deleted in its entirety and replaced with the following:
"6.10 Preliminary Order. The Buyer acknowledges that the
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Preliminary Order entered by the Bankruptcy Court on March
5, 2001 is reasonably satisfactory in all respects to
Buyer."
8. Date of Sale Order. The introduction of Section 6.11 of the
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Purchase Agreement (and only the introduction portion of that section) shall be
deleted in its entirety and replaced with the following:
"6.11 Sale Order. The Sellers shall use their reasonable
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best efforts to obtain entry by the Bankruptcy Court on or
before May 25, 2001 of an order (the "Sale Order") which:"
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9. Closing Date. Section 8.1 of the Purchase Agreement shall be
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deleted in its entirety and replaced with the following:
"8.1 Closing. Subject to the terms and conditions of this
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Agreement, the closing of the transactions provided for in
this Agreement (the "Closing") shall take place at 12:01pm
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(Eastern time) on June 15, 2001 or at such date and time as
may be mutually agreed by the parties (the "Closing Date"),
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subject to Section 10 hereof; provided, however, that the
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Sellers shall use reasonable best efforts to close the
transactions provided for in this Agreement at such earlier
date and time as reasonably possible."
10. Termination. Section 10.1(e) of the Purchase Agreement shall be
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deleted in its entirety and replaced with the following:
"(e) If this Agreement has not otherwise been terminated,
by Buyer or Sellers if the Closing Date has not occurred on
or prior to June 30, 2001; provided, that Sellers may not
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exercise their right to terminate the Agreement under this
Section 10.1(e) if the reasons for the failure to consummate
the transaction by June 30, 2001 are attributable to the
Sellers;"
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11. Notices. The address of Einstein/Noah Bagel Corp. and
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Einstein/Noah Bagel Partners, L.P. as set forth in Section 11.9 of the Agreement
shall be deleted and replaced with the following:
"1687 Xxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq."
12. Consent and Waiver. On March 1, 2001 Einstein/Noah paid insurance
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premiums in the amount of $984,649.50 (the "Payment"), and Einstein/Noah
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intends, prior to the Closing, to make additional monthly insurance premium
payments each in the approximate amount of $295,871.91 (together with the
Payment, the "Payments"). Provided Einstein/Noah complies, in all material
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respects, with the terms of the Premium Financing Contract up to the Closing
Date, ENB hereby consents to the Payments pursuant to Section 6.2 of the
Purchase Agreement and waives any right to terminate the Purchase Agreement, any
claim for indemnification for a breach of the Purchase Agreement or any other
claim against Sellers for making such Payments or entering into the Premium
Financing Contract. Einstein/Noah hereby acknowledges that ENB's aforementioned
waiver is only in respect of the Payments and the Premium Financing Contract,
and that ENB reserves the right to exercise all rights, remedies and claims that
may be available to it resulting from any breach by Sellers of the Purchase
Agreement.
13. Interpretation; Full Force and Effect of Agreement. All
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references to the Purchase Agreement and all Related Agreements shall refer to
the Purchase Agreement as amended by this Agreement. Except as hereby
specifically amended, modified or supplemented, the Purchase Agreement and all
other Related Agreements are hereby confirmed and ratified in all respects and
shall remain in full force and effect according to their respective terms.
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If the terms of this Letter are acceptable to Einstein/Noah, please so
indicate by signing below.
Very truly yours,
ENB ACQUISITION LLC
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
ACCEPTED and AGREED:
EINSTEIN/NOAH BAGEL CORP.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
EINSTEIN/NOAH BAGEL PARTNERS, L.P.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President,
Einstein/Noah Bagel Partners, Inc.,
(It's General Partner)
