-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LBrXVki/rpJrpa6zisb+6JddsIPYsCNC+jxjWKcpPMRHM1JA1zkerAk0q8bQPyLU g4dVYMCKJareQHp1IF9gow== 0000904454-03-000534.txt : 20031003 0000904454-03-000534.hdr.sgml : 20031003 20031002182821 ACCESSION NUMBER: 0000904454-03-000534 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20031003 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NEW WORLD RESTAURANT GROUP INC CENTRAL INDEX KEY: 0000949373 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 133690261 STATE OF INCORPORATION: DE FISCAL YEAR END: 1228 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-50342 FILM NUMBER: 03925570 BUSINESS ADDRESS: STREET 1: 246 INDUSTRIAL WAY WEST STREET 2: C/O NEW WORLD HOLDINGS CITY: EATONTOWN STATE: NJ ZIP: 07724 BUSINESS PHONE: 7325440155 MAIL ADDRESS: STREET 1: 246 INDUSTRIAL WAY WEST STREET 2: C/O NEW WORLD HOLDINGS CITY: EATONTOWN STATE: NJ ZIP: 07724 FORMER COMPANY: FORMER CONFORMED NAME: NEW WORLD COFFEE MANHATTAN BAGEL INC DATE OF NAME CHANGE: 19990413 FORMER COMPANY: FORMER CONFORMED NAME: NEW WORLD COFFEE & BAGELS INC / DATE OF NAME CHANGE: 19981007 FORMER COMPANY: FORMER CONFORMED NAME: NEW WORLD COFFEE INC DATE OF NAME CHANGE: 19950815 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HALPERN DENNY III LP CENTRAL INDEX KEY: 0001133588 IRS NUMBER: 043501525 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 500 BOYLSTON STREET STREET 2: SUITE 1880 CITY: BOSTON STATE: MA ZIP: 02116 BUSINESS PHONE: 6175366602 MAIL ADDRESS: STREET 1: 500 BOYLSTON STREET STREET 2: SUITE 1880 CITY: BOSTON STATE: MA ZIP: 02116 SC 13D/A 1 s13da_1001-2003newworld.txt SCHEDULE 13D/A CUSIP No. 648904200 Page 1 of 6 Pages SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. 6)[1] New World Restaurant Group, Inc. f/k/a New World Coffee - Manhattan Bagel, Inc. ---------------------------------------------- (Name of Issuer) Common Stock, $.01 par value ---------------------------- (Title of Class of Securities) 648904200 --------- (CUSIP Number) William J. Nimmo Joshua A. Leuchtenburg, Esq. Halpern Denny III, L.P. Ropes & Gray LLP 500 Boylston Street, Suite 1880 45 Rockefeller Plaza Boston, Massachusetts 02116 New York, New York 10111 Tel. (617)536-6602 Tel. (212)841-5700 --------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) September 30, 2003 ------------------------------------------------------- (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. - ----------------------- [1] The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act. CUSIP No. 648904200 Page 2 of 6 Pages 1) Name of Reporting Person: Halpern Denny III, L.P. and I.R.S. Identification No. of Above Person, if an Entity (Voluntary): 04-3501525 - ------------------------------------------------------ 2) Check the Appropriate Box (a) [X] if a Member of a Group (b) [ ] - ------------------------------------------------------ 3) SEC Use Only - ------------------------------------------------------ 4) Source of Funds OO - ------------------------------------------------------ 5) Check if Disclosure of Legal Proceedings Is Not Applicable Required Pursuant to Items 2(d) or 2(e) - ------------------------------------------------------ 6) Citizenship or Place of Organization Delaware - ------------------------------------------------------ Number of 7) Sole Voting - 0 - Shares Beneficially Power Owned by ----------------------------------- 8) Shared Voting Power - 0- ----------------------------------- 9) Sole Disposi- - 0 - tive Power ----------------------------------- 10) Shared Dis- positive Power - 0 - ----------------------------------- 11) Aggregate Amount Beneficially - 0 - Owned by Each Reporting Person - ------------------------------------------------------------------------------- 12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares - ------------------------------------------------------------------------------- 13) Percent of Class Represented by 0% Amount in Row (11) - ------------------------------------------------------------------------------- 14) Type of Reporting Person PN 1) Name of Reporting Person: Halpern Denny & Company V, L.L.C. and I.R.S. Identification No. of Above Person, if an Entity (Voluntary): CUSIP No. 648904200 Page 3 of 6 Pages 04-3501523 - ------------------------------------------------------ 2) Check the Appropriate Box (a) [X] if a Member of a Group (b) [ ] - ------------------------------------------------------ 3) SEC Use Only - ------------------------------------------------------ 4) Source of Funds 00 - ------------------------------------------------------ 5) Check if Disclosure of Legal Proceedings Is Not Applicable Required Pursuant to Items 2(d) or 2(e) - ------------------------------------------------------ 6) Citizenship or Place of Organization Delaware - ------------------------------------------------------ Number of 7) Sole Voting - 0 - Shares Beneficially Power Owned by Reporting Person: --------------------------------------- 8) Shared Voting Power - 0 - --------------------------------------- 9) Sole Dis- - 0 - positive Power --------------------------------------- 10) Shared Dis- positive Power - 0 - --------------------------------------- 11) Aggregate Amount Beneficially - 0 - Owned by Each Reporting Person - ------------------------------------------------------------------------------- 12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares - ------------------------------------------------------------------------------- 13) Percent of Class Represented by 0% Amount in Row (11) - ------------------------------------------------------------------------------- 14) Type of Reporting Person OO CUSIP No. 648904200 Page 4 of 6 Pages Schedule 13D-A -------------- This Amendment No. 6 (the "Schedule 13D Amendment 6") amends Schedule 13D, which was originally filed on February 1, 2001 ("Original Schedule 13D") and amended by Amendment No. 1 to Schedule 13D on April 6, 2001 ("Schedule 13D Amendment 1"), Amendment No. 2 to Schedule 13D on June 25, 2001 ("Schedule 13D Amendment 2"), Amendment No. 3 to Schedule 13D on November 12, 2002 ("Schedule 13D Amendment 3"), Amendment No. 4 to Schedule 13D on March 20, 2003 ("Schedule 13D Amendment 4") and Amendment No. 5 to Schedule 13D on May 20, 2003 ("Schedule 13D Amendment 5"). Terms defined in the Original Schedule 13D, Schedule 13D Amendment 1, Schedule 13D Amendment 2, Schedule 13D Amendment 3, Schedule 13D Amendment 4 and Schedule 13D Amendment 5 are used herein as so defined. The Schedule 13D is hereby amended as follows: Item 3. Source and Amount of Funds or Other Consideration. ------------------------------------------------- As previously disclosed by the Original Schedule 13D, Schedule 13D Amendment 1, Schedule 13D Amendment 2, Schedule 13D Amendment 3, Schedule 13D Amendment 4 and Schedule 13D Amendment 5, HD III is entitled to receive certain Step-Up Warrants and Antidilution Warrants. New World recently issued the Step-Up Warrants and Antidilution Warrants to which HD III was entitled after September 15, 2002. Subsequent to the filing of Schedule 13D Amendment 5, HD III and the SP Funds determined that warrants to purchase an additional 372,746 shares of Common Stock rather than an additional 745,492 as previously disclosed in Schedule 13D Amendment 5 should be transferred to HD III pursuant to the Stock Purchase Agreement by and among Special Situations Fund III, L.P., Special Situations Cayman Fund, L.P. and Special Situations Private Equity Fund, L.P. and HD III. Pursuant to the Equity Restructuring Agreement (the "Restructuring Agreement") dated June 26, 2003 among New World, Greenlight Capital, L.P., Greenlight Capital Offshore, Ltd., Brookwood New World Investors, L.L.C., NWCI Holdings, LLC and HD III, attached hereto as Exhibit 99.1, HD III has agreed to deliver, assign and transfer to New World all of its voting securities of New World, which consist of 23,264,107 shares of Common Stock, warrants to purchase 13,711,054 shares of Common Stock and 56,237.994 shares of Series F Preferred Stock of New World previously acquired by HD III in a series of private transactions pursuant to certain Purchase Agreements as previously disclosed by the Original Schedule 13D, as amended, in exchange for 57,000 shares of Series Z Preferred Stock, par value $0.001. Item 4. Purpose of Transaction. ---------------------- Pursuant to the terms of the Restructuring Agreement, HD III exchanged all of the voting securities of New World held by it for 57,000 shares of Series Z Preferred Stock for investment purposes. The closing under the Restructuring Agreement occurred on September 30, 2003. Pursuant to the terms of the Restructuring Agreement, HD III exchanged (i) 23,264,107 shares of Common Stock, (ii) warrants to purchase 13,711,054 shares of Common Stock and (iii) 56,237.994 shares of Series F Preferred Stock, of New World, for 57,000 shares of Series Z Preferred Stock of New World. According to the Certificate of Designation, Preference and Rights of the Series Z Preferred Stock (the "Series Z Certificate of Designation"), attached hereto as Exhibit 99.2, holders of Series Z Preferred Stock are not entitled to receive dividends, except in the event that New World fails to discharge its obligations to redeem all of the outstanding shares of Series Z Preferred Stock on the earlier of June 30, 2009, or the effective time of a merger or change of control (the "Mandatory Redemption Date"). In the event that New World fails to discharge such redemption obligations, the holders of Series Z Preferred Stock shall be entitled to receive cumulative annual dividends payable quarterly in cash, on each March 31, June 30, September 30 and December 31 (each, a "Dividend Payment Date"), commencing on the first of such dates to occur after the Mandatory Redemption Date, at the rate per of $1,000 per such shares equal to 250 basis point higher than the highest rate paid by New World on its funded indebtedness on each Dividend Payment Date, CUSIP No. 648904200 Page 5 of 6 Pages until such shares are redeemed in full. The liquidation preference (the "Liquidation Preference") for each share of Series Z Preferred Stock is equal to $1,000 (as adjusted for any stock dividends, combinations or splits with respect to such shares) plus all accrued and unpaid dividends, if any. No dividends or other distributions of any kind may be declared or paid on, nor will New World redeem, purchase or acquire any shares of the Common Stock or any other junior class or series of stock other than stock dividends and distributions of the right to purchase common stock and repurchase any such rights in accordance with New World's Rights Agreement dated June 7, 1999, unless all dividends of the Series Z Preferred Stock accrued for all past dividend periods have been paid in full in cash. The Series Z Certificate of Designation provides that the Series Z Preferred Stock is redeemable at the election of New World, in whole or in part, at any time ("Optional Redemption Date") on not less than 5 nor more than 60 days' prior notice, for an amount payable in cash equal 100% of the Liquidation Preference to $1,000 (the "Redemption Price"). As described above, all outstanding shares of Series Z Preferred Stock must be redeemed in whole on the earlier of June 30, 2009 or the effective time of a merger or change of control, at the Redemption Price, payable in cash. Item 5. Interest in Securities of the Issuer ------------------------------------ (a) As of the date hereof, HD III and the General Partner do not beneficially own any shares of Common Stock of New World. (b) Not applicable. (c) Except as described in this statement, neither HD III nor the General Partner have engaged in any transactions in the Common Stock within the past 60 days. (d) Except as described in this statement, no person has the power to direct the receipt of dividends on, or the proceeds from sales of, the shares of Common Stock owned by HD III or the General Partner. (e) On September 30, 2003, HD III and the General Partner ceased to be the beneficial owner of more than five percent of the shares of Common Stock of New World. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. ----------------------------------------------------------------------- Except as described in Items 3 and 4 above and in the Original Schedule 13D, as amended by Schedule 13D Amendment 1, Schedule 13D Amendment 2, Schedule 13D Amendment 3, Schedule 13D Amendment 4 and Schedule 13D Amendment 5, neither HD III nor the General Partner have any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any of the securities of New World, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power over the securities of New World. Item 7. Material to be filed as Exhibits -------------------------------- Exhibit 99.1 - Equity Restructuring Agreement Exhibit 99.2 - Certificate of Designation CUSIP No. 648904200 Page 6 of 6 Pages Signature --------- After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. HALPERN DENNY III L.P. By: Halpern Denny & Company V, L.L.C., General Partner By:/s/ William J. Nimmo ------------------------------------ Managing Member HALPERN DENNY & COMPANY V, L.L.C. By:/s/ William J. Nimmo ----------------------------------------- Managing Member Dated: October 2, 2003 EX-99.1 3 e991_1001-2003newworld.txt RESTRUCTURING AGREEMENT Exhibit 99.1 ------------ =============================================================================== NEW WORLD RESTAURANT GROUP, INC. -------------------------------- EQUITY RESTRUCTURING AGREEMENT ------------------------------ June 26, 2003 ------------- =============================================================================== Table of Contents Page 1. Exchange of Halpern Denny's Interests in the Company.............2 2. Exchange of Greenlight's Series F Preferred Stock................2 3. Capitalization...................................................2 4. The Closing......................................................3 5. Representations and Warranties by the Company....................3 5.1 Organization and Authority of the Company...............3 5.2 Authority of the Company................................3 5.3 No Conflicts; Consents of Third Parties.................4 5.4 Capitalization..........................................5 6. Representations and Warranties by the Equity Holders.............6 6.1 Organization and Authority of such Equity Holder........6 6.2 Authority of such Equity Holder.........................6 6.3 No Conflicts; Consents of Third Parties.................7 6.4 Ownership...............................................7 7. Additional Representations and Warranties of Greenlight and Halpern Denny..............................................7 8. Further Agreements of the Parties................................7 8.1 Proxy Statement; Company Stockholder Approval...........7 8.2 Voting..................................................8 8.3 No Transfers of or Encumbrances on Securities...........8 8.4 Waiver of Rights........................................9 8.5 Termination of Stockholders Agreement...................9 8.6 Limitation on Accretion.................................9 8.7 Amendment to Warrant Agreement..........................9 8.8 Fees and Expenses.......................................9 8.9 Further Assurances.....................................10 8.10 Withdrawal of Board Recommendation.....................10 9. Conditions to Closing...........................................10 9.1 Conditions to the Obligation of each Equity Holder................................................10 9.2 Conditions to the Obligations of the Company...........12 10. Transactions at the Closing.....................................13 10.1 Items to Be Delivered by the Company...................13 10.2 Items to Be Delivered by each Equity Holder............13 11. Termination.....................................................14 11.1 Termination............................................14 11.2 Liability..............................................14 12. Continuing Director and Officer Indemnification.................14 13. Miscellaneous...................................................15 13.1 Notices................................................15 13.2 Entire Agreement.......................................16 13.3 Headings...............................................16 13.4 Governing Law..........................................16 13.5 Separability...........................................16 13.6 Waiver.................................................16 13.7 Assignment.............................................16 13.8 Jurisdiction...........................................16 13.9 No Third Party Beneficiaries...........................17 13.10 Counterparts...........................................17 14. Fees and Expenses...............................................17 14.1 Greenlight Fees and Expenses...........................17 14.2 Halpern Denny Fees and Expenses........................17 ii EQUITY RESTRUCTURING AGREEMENT ------------------------------ June 26, 2003 The parties to this Agreement are New World Restaurant Group, Inc., a Delaware corporation (the "Company"), Greenlight Capital, L.P., a Delaware limited partnership ("Greenlight Capital"), Greenlight Capital Qualified, L.P., a Delaware limited partnership ("Greenlight Qualified"), Greenlight Capital Offshore, Ltd., a British Virgin Islands company ("Greenlight Offshore"), Brookwood New World Investors, L.L.C., a Delaware limited liability company ("Brookwood"), and NWCI Holdings, LLC, a Delaware limited liability company ("NWCI" and with Brookwood, NWCI, Greenlight Capital, Greenlight Qualified, Greenlight Offshore, "Greenlight") and Halpern Denny Fund III, L.P. ("Halpern Denny" and together with Greenlight, the "Equity Holders"). RECITALS The Company is seeking to refinance its existing senior secured increasing rate notes due 2003 (the "Existing Notes") and, in connection therewith, is engaged in negotiations with respect to (i) an offering pursuant to Rule 144A promulgated under the Securities Act of 1933, as amended, of $160.0 million of senior secured notes due 2008 and (ii) a new senior revolving credit facility secured by substantially all of the assets of the Company and its subsidiaries, other than certain inactive subsidiaries (the "Refinancing"). Greenlight owns 57,368.756 shares of Series F Preferred Stock, par value $0.001 per share of the Company (the "Series F Preferred Stock"), 10,061,351 shares of common stock, par value $0.001 per share of the Company (the "Common Stock"), and warrants to purchase 22,078,114 shares of Common Stock. Halpern Denny owns 56,237.994 shares of Series F Preferred Stock, 23,264,107 shares of Common Stock and warrants to purchase 13,711,054 shares of Common Stock (collectively, the "Halpern Denny Interests"). Pursuant to the terms of an amendment to the Note Purchase and Security Agreement dated June 19, 2001, as amended (the "Note Purchase Agreement"), by and among Jefferies & Company, Inc. ("Jefferies"), the Company and Greenlight, Jefferies agreed to purchase all of the secured increasing rate notes (the "EnbcDeb Corp. Notes") of New World EnbcDeb Corp., a New York corporation ("EnbcDeb Corp."), immediately prior to the consummation of the Refinancing, and the Company has agreed to issue, contemporaneously with the consummation of Stock to Jefferies in full satisfaction of the Company's obligations under the Note Purchase Agreement. Immediately upon the issuance to Jefferies of the Series F Preferred Stock, Greenlight agreed to purchase such shares of Series F Preferred Stock from Jefferies for aggregate consideration of $2,770,000, payable in cash. Following such purchase, Greenlight will hold 61,706.237 shares of Series F Preferred Stock. This Agreement provides for the restructuring of the Company's capital stock (the "Equity Restructuring"). Accordingly, it is agreed as follows: 1. Exchange of Halpern Denny's Interests in the Company. At the Closing referred to in Section 4, Halpern Denny shall deliver, assign and transfer to the Company, 56,237.994 shares of Series F Preferred Stock, 23,264,107 shares of Common Stock and warrants to purchase 13,711,054 shares of Common Stock, and the Company shall issue to Halpern Denny in exchange therefor 57,000 shares of Series Z Preferred Stock, par value $0.001 per share (the "Series Z Preferred Stock"), which shall have the rights and preferences set forth in the Certificate of Designation, Preferences and Rights of Series Z Preferred Stock (the "Certificate of Designation") attached to this Agreement as Schedule 1. Such shares of Series Z Preferred Stock will not be registered under the Securities Act of 1933, as amended (the "Securities Act") and shall contain a legend stating that such securities have not been registered under the Securities Act and may only be transferred pursuant to an effective registration statement or an exemption from the registration requirements of the Securities Act. 2. Exchange of Greenlight's Series F Preferred Stock. At the Closing referred to in Section 4, Greenlight shall deliver, assign and transfer to the Company, 61,706.237 shares of Series F Preferred Stock, and the Company shall issue to Greenlight in exchange therefor 938,084,289 shares of Common Stock (prior to any reverse stock split effect in connection with the Equity Restructuring). Such shares of Common Stock will not be registered under the Securities Act and shall contain a legend stating that such securities have not been registered under the Securities Act and may only be transferred pursuant to an effective registration statement or an exemption from the registration requirements of the Securities Act. 3. Capitalization. The Company and the Equity Holders acknowledge and agree that immediately upon the Closing of the transactions contemplated by this Agreement; the Company's capitalization will be as set forth on Schedule 3 attached to this Agreement. 2 4. The Closing. The Closing of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Proskauer Rose LLP, 1585 Broadway, New York, New York 10036 (or at such other place as the parties may agree upon in writing) on the fifth business day after the conditions specified in Section 9 have been fulfilled (or waived by the applicable parties) or such other date as the parties may agree upon. The date on which the Closing is held is referred to in this Agreement as the "Closing Date." At the Closing, the parties shall take the actions and execute and deliver the documents and other items referred to in Section 9. 5. Representations and Warranties by the Company. The Company represents and warrants to the Equity Holders as follows: 5.1 Organization and Authority of the Company. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the full power, right and authority to enter into and perform this Agreement in accordance with its terms and to own, lease and operate its properties as it now does and to carry on its business as it is presently being conducted. 5.2 Authority of the Company. (a) The Company has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement and to consummate the transactions contemplated by this Agreement (other than the approval and adoption of this Agreement and the amendment of the Company's certificate of incorporation by the holders of the Common Stock in accordance with the Delaware General Corporation Law ("Delaware Law") and the Company's certificate of incorporation (the "Company Stockholders' Action")). The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated by this Agreement, other than the Company Stockholders' Action. This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by each of the other parties to this Agreement, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general application affecting the enforcement of creditors' rights generally now or hereafter in effect and (ii) general principles of equity, regardless of whether asserted in a proceeding in equity or at law. 3 (b) The Company's board of directors (the "Company Board") has, by resolutions duly adopted by unanimous vote at a meeting of all directors duly called and held and not subsequently rescinded or modified in any way, (i) duly declared that this Agreement and the transactions contemplated by this Agreement are fair to, and in the best interests of, the Company's stockholders, (ii) authorized, approved and adopted this Agreement and the transactions contemplated by this Agreement, and (iii) recommended that the holders of the Company's Common Stock approve and adopt this Agreement and the transactions contemplated by this Agreement and directed that such matters be submitted to the holders of the Company's Common Stock at a meeting of the holder's of the Company's Common Stock. (c) The Company Board has taken all necessary action so that the restrictions contained in Section 203 of the Delaware Law applicable to a "business combination" (as defined in Section 203) are, and at all times upon or prior to the Closing such restrictions shall be, inapplicable to the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated by this Agreement. (d) The Company Board has taken all necessary action so that (A) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will cause (i) the Rights (as defined in the Rights Agreement) to become exercisable under the Rights Agreement, dated as of June 7, 1999 between the Company and American Stock Transfer & Trust Company, as Rights Agent (the "Rights Agreement"), or (ii) Greenlight to be deemed to be an "Acquiring Person" (as defined in the Rights Agreement). The "Distribution Date" (as defined in the Rights Agreement) has not occurred. (e) The Company Board has received the opinion of CIBC World Markets Corp., financial advisor to the Company, to the effect that, as of the date of this Agreement, the shares of Series Z Preferred Stock and Common Stock to be issued by the Company in the Equity Restructuring in exchange for the Halpern Denny Interests and Greenlight's Series F Preferred Stock is fair, from a financial point of view, to the Company. 5.3 No Conflicts; Consents of Third Parties. (a) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated by this Agreement will not (i) conflict with the certificate of incorporation or by-laws of the Company; (ii) conflict with, or result in the breach or termination of, or constitute a default under any material lease, agreement, commitment or other instrument, or any material order, judgment or decree, to which the Company, is a party or by which the Company, any of its 4 subsidiaries or any of their respective assets or properties is bound or affected; (iii) constitute a breach or violation of any law, regulation, order, writ, judgment, injunction or decree applicable to the Company, any of its subsidiaries or any of their respective assets or properties; or (iv) result in the creation of any claim, lien, security interest, charge or encumbrance upon any of the capital stock of the Company or upon any assets of the Company or any of its subsidiaries. (b) The execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement will not, require any consent, approval, authorization of, or declaration or filing with any governmental body, court or other person or entity, except for the filing with the Securities and Exchange Commission (the "SEC") of the proxy statement to be distributed to the holders of the Company Common Stock in connection with the meeting of the holders of the Company's Common Stock to approve the Company Common Stockholders' Action (the "Proxy Statement") under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act"). 5.4 Capitalization. (a) The authorized capital stock of the Company consists of 150,000,000 shares of Common Stock and 2,000,000 shares of preferred stock, par value $0.001 per share. The Company designated 116,000 shares of preferred stock as Series F Preferred Stock. As of June 15, 2003, (i) 51,016,857 shares of Common Stock were issued and outstanding, (ii) no shares of Common Stock were held in the treasury of the Company, (iii) 94,349.053 shares of Series F Preferred Stock were issued and outstanding (including 16,093.883 shares representing accrued and unpaid dividends due on outstanding shares of Series F Preferred Stock), (iv) no shares of Series F Preferred Stock were held in the treasury of the Company, (v) 25,000 shares of Series D Preferred Stock of the Company, par value $.001 per share, were designated, (vi) no shares of Series D Preferred Stock were issued and outstanding, (vii) 500,000 shares of Series C Convertible Preferred Stock of the Company, par value $0.001 per share, were designated, (viii) no shares of Series C Convertible Preferred Stock were issued and outstanding, (ix) 225 shares of Series B Convertible Preferred Stock of the Company, par value $0.001 per share, were designated, (x) no shares of Series B Convertible Preferred Stock were issued and outstanding, (xi) 400 shares of Series A Convertible Preferred Stock of the Company, par value $0.001 per share, were designated, (xii) no shares of Series A Convertible Preferred Stock were issued and outstanding, (xiii) 5,266,442 shares of Common Stock were reserved for issuance pursuant to outstanding options, and (xiv) 58,133,784 shares of Common Stock were reserved for issuance pursuant to outstanding warrants. (b) Schedule 5.4(b) sets forth a true and complete list of each current or former employee, officer, director or consultant of the Company or any of its subsidiaries who holds an option to purchase Common Stock ("Options") as of June 15, 2003, together with the number of shares of Common Stock subject to such option, the date of grant of such Option, the 5 exercise price of such Option, the expiration date of such Option, the vesting schedule for such Option. (c) Schedule 5.4(c) sets forth a true and complete list of all warrants, rights and other securities (other than Options) convertible into or exchangeable or exercisable for, Common Stock as of June 15, 2003, together with the number of shares of Common Stock subject to such warrant, right or security, the date of grant of such warrant, right or security, the exercise or conversion price of such warrant, right or security the expiration date of such warrant, and the vesting schedule, if any, for such warrant, right or security. (d) Except as set forth on Schedule 5.4(b), 5.4(c) or 5.4(d) and as contemplated by this Agreement, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or preemptive rights relating to the issued or unissued capital stock of the Company any of its subsidiaries or obligating the Company or any of its subsidiaries to issue, transfer, deliver or sell, or cause to be issued, transferred, delivered or sold, any shares of capital stock of, or any securities directly or indirectly convertible into or exercisable or exchangeable for any shares of capital stock of, the Company or any of its subsidiaries, all of which will be subject to the restructuring contemplated by this Agreement. (e) No holder of any securities of the Company is entitled to any anti-dilution or similar protections or rights, except with respect to the securities set forth on Schedule 5.4(d). (f) Upon the consummation of the Equity Restructuring, the Company's capitalization will be as set forth on Schedule 3 attached to this Agreement. 6. Representations and Warranties by the Equity Holders. Each of the Equity Holders severally and not jointly, with respect to itself only, represents and warrants to the Company as follows: 6.1 Organization and Authority of such Equity Holder. Such Equity Holder is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation or organization and has the full power, right and authority to enter into and perform this Agreement in accordance with its terms. 6.2 Authority of such Equity Holder. Such Equity Holder has all necessary power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by such Equity Holder and the consummation by such Equity Holder of the transactions contemplated by this Agreement have been duly and validly 6 authorized by all necessary action on the part of such Equity Holder, and no other proceedings on the part of such Equity Holder is necessary to authorize this Agreement or to consummate the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by such Equity Holder and, assuming the due authorization, execution and delivery of this Agreement by each of the other parties to this Agreement, constitutes a legal, valid and binding obligation of such Equity Holder, enforceable against such Equity Holder in accordance with its terms, except as enforceability may be limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general application affecting the enforcement of creditors' rights generally now or hereafter in effect and (ii) general principles of equity, regardless of whether asserted in a proceeding in equity or at law. 6.3 No Conflicts; Consents of Third Parties. (a) The execution, delivery and performance of this Agreement by such Equity Holder and the consummation of the transactions contemplated by this Agreement will not (i) conflict with the constitutive agreements of such Equity Holder; (ii) conflict with, or result in the breach or termination of, or constitute a default under any material lease, agreement, commitment or other instrument, or any material order, judgment or decree, to which such Equity Holder, is a party or by which it is bound; or (iii) constitute a violation by such Equity Holder of any law, regulation, order, writ, judgment, injunction or decree applicable to it. (b) The execution and delivery of this Agreement by such Equity Holder does not, and the performance of this Agreement by such Equity Holder and the consummation by such Equity Holder of the transactions contemplated by this Agreement will not, require any consent, approval, authorization of, or declaration or filing with any governmental body, court or other person or entity, other than filings pursuant to applicable securities laws. 6.4 Ownership. Such Equity Holder owns the number of shares of Series F Preferred Stock, Common Stock and warrants to purchase Common Stock set forth opposite its name on Schedule 6.4. 7. Additional Representations and Warranties of Greenlight and Halpern Denny. Greenlight and Halpern Denny have executed and delivered the Consent and Waiver Agreement dated June 26, 2003, and the Consent and Waiver Agreement has not been superseded, amended or terminated. 8. Further Agreements of the Parties. 8.1 Proxy Statement; Company Stockholder Approval. 7 (a) As promptly as practicable after the consummation of the Refinancing, the Company shall prepare and file the Proxy Statement with the SEC. The Company shall use all commercially reasonable efforts to respond as promptly as practicable to any comments of the SEC on the Proxy Statement. (b) The Company shall notify the other parties hereto of the receipt of any comments from the SEC relating to the Proxy Statement. (c) The Company shall, in accordance with Delaware Law and the Company's certificate of incorporation and by-laws, call, hold and convene a special meeting of the holders of the Common Stock (the "Company Stockholders' Meeting") to consider and vote upon the approval and adoption of the Company Stockholders' Action. The Company Board shall recommend the approval and adoption of the Company Stockholders' Action by the holders of the Common Stock and shall include such recommendation in the notice of and in the Proxy Statement. The Company will use its commercially reasonable efforts to cause the Proxy Statement to be mailed to the holders of the Common Stock as promptly as practicable after the SEC has no further comments on the Proxy Statement. The Company shall take all lawful action to solicit from the holders of the Common Stock proxies in favor of the approval and adoption of the Company Stockholders' Action and will take all other action necessary or advisable to secure the vote or consent of the holders of the Common Stock required by Delaware Law to obtain such approvals. 8.2 Voting. Each Equity Holder shall vote all of its shares of Common Stock that such Equity Holder is entitled to vote at the Company Stockholders' Meeting in favor of the approval and adoption of the Company Stockholders' Action. Each Equity Holder shall not vote any of its shares of Common Stock that such Equity Holder is entitled to vote at the Company Stockholders' Meeting, in favor of the approval of any corporate action that would frustrate the purposes, or prevent or delay the consummation, of the transactions contemplated by this Agreement. 8.3 No Transfers of or Encumbrances on Securities. Except pursuant to the terms of this Agreement, no Equity Holder shall, without the prior written consent of the Company, directly or indirectly, (i) grant any proxies or enter into any voting trust or other agreement or arrangement with respect to the voting of any of its shares of capital stock of the Company or (ii) sell, assign, transfer, encumber or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the direct or indirect sale, assignment, transfer, encumbrance or other disposition of, any of its shares of capital stock of the Company during the term of this Agreement. No Equity Holder shall seek or solicit any such sale, assignment, transfer, encumbrance or other disposition or any such contract, option or other arrangement or understanding and agrees to notify the Company promptly, and to provide all 8 details requested by the Company, if that Equity Holder shall be approached or solicited, directly or indirectly, by any person with respect to any of the foregoing. 8.4 Waiver of Rights. Each Equity Holder waives any preemptive rights and rights to anti-dilution protection that such Equity Holder may possess pursuant to any warrants, rights and other securities issued to such Equity Holder by the Company or agreements with the Company in connection with (i) the Equity Restructuring and (ii) any Common Stock, options, rights and other securities exercisable for Common Stock that may be issued to any of the Company's or its subsidiaries' officers or employees pursuant to any management incentive plans approved and adopted by the Company Board and stockholders. 8.5 Termination of Stockholders Agreement. Immediately prior to the Closing, the Company, Halpern Denny and Greenlight shall cause the Stockholders Agreement dated January 18, 2001, as amended March 29, 2001, June 19, 2001 and July 9, 2001 by and among the Company, BET Associates, L.P., Brookwood, Halpern Denny and Greenlight (the "Stockholders Agreement") to be terminated. 8.6 Limitation on Accretion. Notwithstanding anything to the contrary contained in the LLC Agreement, the Bond Purchase Agreement or the letter agreement dated as of June 19, 2001 (the "Side Letter"), among Greenlight Capital, Greenlight Qualified and Greenlight Offshore, the Company and Greenlight New World, L.L.C. (the "LLC"), the LLC Agreement and the Bond Purchase Agreement (each, as defined in the Side Letter), in the event (and only in the event) of the consummation of the Equity Restructuring, the Contribution Amount (as defined in the Bond Purchase Agreement) shall be calculated as of June 30, 2003, without accretion thereafter, regardless of the date upon which the Equity Restructuring is consummated, for purposes of determining the number of warrants to purchase shares of Common Stock and shares of Series F Preferred Stock issuable to Greenlight Capital, Greenlight Qualified and Greenlight Offshore pursuant to the Side Letter. The warrants to purchase Common Stock and shares of Series F Preferred Stock so issued shall be issued in full satisfaction of all obligations of the Company to Greenlight Capital, Greenlight Qualified and Greenlight Offshore under the LLC Agreement, the Bond Purchase Agreement and the Side Letter. 8.7 Amendment to Warrant Agreement. The Company and Greenlight shall execute Amendment No. 2 to the Warrant Agreement dated as of June 19, 2001, as amended between the Company and The Bank of New York, as successor in interest to the corporate trust business of United States Trust Company of New York, as warrant agent in substantially the form attached hereto as Schedule 8.7 (the "Warrant Agreement Amendment"). 8.8 Fees and Expenses. Subject to Section 14, each party shall bear its own expenses incurred in connection with the negotiation and preparation of this Agreement and in connection with all obligations required to be performed by it under this Agreement. 9 8.9 Further Assurances. At any time and from time to time after the Closing, each of the parties shall, without further consideration, execute and deliver or cause to be executed and delivered to the other parties such additional instruments, and shall take such other action as the other parties may request to carry out the transactions contemplated by this Agreement. 8.10 Withdrawal of Board Recommendation. The Company Board shall not (i) withdraw or modify or propose to withdraw or modify, the approval or recommendation of the Company Board of this Agreement, or (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal (as hereinafter defined) provided that, the Company Board may withdraw or modify or propose to withdraw or modify its recommendation of this Agreement or recommend or propose to recommend an Acquisition Proposal if, in each case, the Company Board determines in good faith, after consultation with its financial advisor, that such Acquisition Proposal is a Superior Proposal (as hereinafter defined) and determines in good faith, based upon advice of its outside legal counsel, that it would be inconsistent not to do so in order to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company shall provide reasonable notice to the Equity Holders to the effect that it is taking such action. For purposes of this Agreement, "Acquisition Proposal" shall mean any offer or proposal, whether in writing or otherwise, made by a third party to acquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of all or a material portion of the assets of, or any material equity interest in, the Company or its material subsidiaries pursuant to a merger, consolidation or other business combination, recapitalization, sale of shares of capital stock, sale of assets, tender offer or exchange offer or similar transaction involving the Company (other than the transactions contemplated by this Agreement). The term "Superior Proposal" means any proposal to acquire, directly or indirectly, for consideration consisting of cash or securities, more than a majority of each class of capital stock then outstanding or all or substantially all of the assets of the Company, and otherwise on terms which the Company Board determines in good faith to be more favorable to the Company and its stockholders than the Equity Restructuring contemplated by this Agreement, for which financing, to the extent required, is then committed. 8.11 "Short Form" Merger. Greenlight shall not effect a merger of the Company with any other entity pursuant to Section 253 of the Delaware Law. 9. Conditions to Closing. 9.1 Conditions to the Obligation of each Equity Holder. Each Equity Holder's obligation to consummate the transactions contemplated by this Agreement are subject to the fulfillment, at or prior to the Closing, of each of the following conditions (any of which may be waived in writing by such Equity Holder): 10 (a) all representations and warranties of the Company under this Agreement shall be true and correct (i) at and as of the time given (or with respect to any representation and warranty, which speaks as of a specific date, as of such date) and (ii) at and as of the time of the Closing with the same effect as if the representations and warranties had been made again at and as of that time; (b) the Company shall have performed and complied in all material respects with all obligations, covenants and conditions required by this Agreement to be performed or complied with by the Company prior to or at the Closing; (c) the Refinancing shall have been consummated on substantially the terms set forth in the preliminary offering circular dated June 26, 2003; (d) the Company shall have entered into a new senior revolving credit facility on substantially the terms set forth in the preliminary offering circular dated June 26, 2003; (e) Jefferies shall have purchased all of the EnbcDeb Corp. Notes; (f) Greenlight shall have purchased all of the Series F Preferred Stock held by Jefferies; (g) the Company Stockholders' Action shall have been approved and adopted by the Company's stockholders at the Company Stockholders' Meeting in accordance with Delaware Law and the Company's certificate of incorporation; (h) the Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware and the Certificate of Designation shall have been accepted and certified by the Secretary of State of the State of Delaware; (i) the Company shall have filed an amendment to its certificate of incorporation in a form reasonably acceptable to the parties with the Secretary of State of the State of Delaware and such amendment shall have been accepted and certified by the Secretary of State of the State of Delaware; 11 (j) in the case of Greenlight, the Company and such Equity Holder shall have executed and delivered the Registration Rights Agreement in the form attached hereto as Schedule 9.1(j); (k) there shall not be any material litigation pending which seeks to enjoin the consummation of the Refinancing, the purchase of the EnbcDeb Corp. Notes, the issuance of the Series F Preferred Stock to Jefferies contemplated by the Note Purchase Agreement, Greenlight's purchase of Jefferies' shares of Series F Preferred Stock and the transactions contemplated by this Agreement; (l) such Equity Holder shall have been furnished with each of the items to be delivered in accordance with Section 10.1; (m) the Company shall have executed and delivered the Warrant Agreement Amendment; (n) the Stockholders Agreement shall have been terminated; (o) Farallon Capital Partners, L.P., Farallon Capital Institutional Partners, L.P., Farallon Capital Institutional Partners II, L.P., Farallon Capital Institutional Partners III, L.P., Tinicum Partners, L.P. and Farallon Capital Offshore Investors, Inc. (collectively, "Farallon") shall have consummated the transactions contemplated by the Agreement of even date herewith between Farallon and the Company; and (p) Halpern Denny shall have received the opinion of Proskauer Rose LLP, counsel to the Company in form and substance reasonably acceptable to Halpern Denny. 9.2 Conditions to the Obligations of the Company. The obligation of the Company to consummate the transactions under this Agreement is subject to the fulfillment, at or prior to the Closing, of each of the following conditions (any of which may be waived in writing by the Company): (a) all representations and warranties of each of the Equity Holders contained in this Agreement shall be true in all material respects at and as of the time of the Closing with the same effect as if the representations and warranties had been made again at and as of that time; 12 (b) each Equity Holder shall have performed and complied in all material respects with all obligations, covenants and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing; (c) there shall not be any material litigation pending which seeks to enjoin the consummation of the transactions contemplated by this Agreement; (d) Greenlight shall have executed and delivered the Registration Rights Agreement; (e) Greenlight shall have executed and delivered the Warrant Agreement Amendment; and (f) the Company shall have been furnished with each of the other items to be delivered in accordance with Section 10.2. 10. Transactions at the Closing. 10.1 Items to Be Delivered by the Company. At the Closing, the Company shall deliver the following: (a) to Greenlight: (i) certificates representing the shares of Common Stock to be issued to Greenlight, (ii) the general release in substantially the form of Schedule 10.1(a) and (iii) such other certificates, instruments and documents as Greenlight may reasonably request; and (b) to Halpern Denny: (i) certificates representing the shares of Series Z Preferred Stock to be issued to Halpern Denny, (ii) the general release in substantially the form of Schedule 10.1(a), including, without limitation, a general release for any of Halpern Denny's former designees to the Company Board or any of the boards of directors of the Company's subsidiaries and (iii) such other certificates, instruments and documents as Halpern Denny may reasonably request. 10.2 Items to Be Delivered by each Equity Holder. (a) At the Closing, Greenlight shall deliver to the Company or Halpern Denny, as applicable the following: (i) stock certificates representing all of the shares of Series F 13 Preferred Stock owned by Greenlight, together with duly executed stock powers; (ii) a general release in favor of the Company in substantially the form of Schedule 10.1(a); (iii) a general release in favor of Halpern Denny in substantially the form of Schedule 10.1(a); and (iv) such other certificates, instruments and documents as the Company may reasonably request. (b) At the Closing, Halpern Denny shall deliver to the Company or Greenlight, as applicable the following: (i) stock certificates representing all of the shares of Series F Preferred Stock owned by Halpern Denny, together with duly executed stock powers; (ii) stock certificates representing all shares of Common Stock owned by Halpern Denny, together with duly executed stock powers; (iii) all of the warrants held by Halpern Denny, duly endorsed for transfer; (iv) a general release in favor of the Company in substantially the form of Schedule 10.1(a); (v) a general release in favor of Greenlight in substantially the form of Schedule 10.1(a); and (vi) such other certificates, instruments and documents as the Company may reasonably request. 11. Termination. 11.1 Termination. This Agreement may be terminated: (a) by written agreement of the parties; (b) by any of the parties if the Equity Restructuring shall not have occurred by September 30, 2003; or (c) by any of the parties if the Company Board shall have withdrawn its recommendation set forth in Section 5.2(b) as to the advisability of the circumstances contemplated by this Agreement. 11.2 Liability. The termination of this Agreement under Section 11.1 shall not relieve any party of any liability for breach of this Agreement prior to the date of termination. 12. Continuing Director and Officer Indemnification. (a) From and after the Closing, the Company shall fulfill and honor the obligations of the Company pursuant to the indemnification and advancement provisions in the Company's certificate of incorporation and by-laws existing as in effect on the date of this Agreement with respect to the Company's directors and officers, including former directors and officers, for a period of six years. 14 (b) For a period of six years after the Closing, the Company shall use its commercially reasonable efforts to maintain in effect, a directors and officers liability insurance policy covering those persons who are covered by the Company's directors and officers liability insurance policy as of the date of this Agreement, which policy provides coverage for such individuals on at least as favorable terms as the policy or policies from time to time in effect for the Company's then existing directors and officers. (c) The provisions of this Section 12 are intended to be for the benefit of any designee of any Equity Holder who has served as a director of the Company. 13. Miscellaneous. 13.1 Notices. Any notice or other communication under this Agreement shall be in writing and shall be considered given when delivered personally, one business day after being sent by a major overnight courier, or four days after being mailed by registered mail, return receipt requested, to the parties at the addresses set forth below (or at such other address as a party may specify by notice to the other): (a) If to the Company: New World Restaurant Group, Inc. 1687 Cole Boulevard Golden, CO 80401 Facsimile: (303) 568-8039 Attention: Anthony D. Wedo (b) if to Greenlight: c/o Greenlight Capital, Inc. 420 Lexington Avenue, Suite 1740 New York, New York 10017 Facsimile: (212) 973-1900 Attention: David Einhorn (c) if to Halpern Denny: Halpern Denny Fund III, L.P. 500 Boylston Street Suite 1880 Boston, MA 02116 Facsimile: (617) 536-8535 15 Attention: William J. Nimmo 13.2 Entire Agreement. This Agreement, including the schedules, contains a complete statement of all the arrangements among the parties with respect to its subject matter, supersedes any previous agreements among them relating to that subject matter and cannot be changed or terminated orally. Except as specifically set forth in this Agreement, there are no representations or warranties by any party in connection with the transactions contemplated by this Agreement. 13.3 Headings. The section headings of this Agreement are for reference purposes only and are to be given no effect in the construction or interpretation of this Agreement. 13.4 Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made and to be performed in New York without giving effect to choice of law or conflicts of law principles. 13.5 Separability. If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement shall remain in effect. 13.6 Waiver. Any party may waive compliance by any other party with any provision of this Agreement. No waiver of any provision shall be construed as a waiver of any other provision. Any waiver must be in writing. No failure or delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of the right, power or privilege. A single or partial exercise of any right, power or privilege will not preclude any other or further exercise of the right, power or privilege or the exercise of any other right, power or privilege. 13.7 Assignment. No party may assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other parties. 13.8 Jurisdiction. The courts of the State of New York in New York county and the United States District Court for the Southern District of New York shall have exclusive jurisdiction over the parties with respect to any dispute or controversy among them arising under or in connection with this Agreement and, by execution and delivery of this Agreement, each of the parties to this Agreement submits to the jurisdiction of those courts, waives any objection to such jurisdiction on the grounds of venue or forum non conveniens, the absence of any personal or subject matter jurisdiction and any similar grounds, consents to service of process by mail (in accordance with Section 13.1) or any other manner permitted by law, and irrevocably agrees to be bound by any judgment rendered thereby in connection with 16 this Agreement. These consents to jurisdiction shall not be deemed to confer rights on any person other than the parties to this Agreement. 13.9 No Third Party Beneficiaries This Agreement does not create, and shall not be construed as creating, any rights in favor of any person not a party to this Agreement. 13.10 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original and all of which shall be considered a single instrument. 14. Fees and Expenses. 14.1 Greenlight Fees and Expenses. The Company shall pay any and all legal fees and expenses of counsel to Greenlight, which fees and expenses relate to services rendered in connection with Greenlight's investment in the Company, including, without limitation, the transactions contemplated by this Agreement, provided, however, that such fees and expenses shall not exceed $500,000. 14.2 Halpern Denny Fees and Expenses. The Company shall pay any and all legal fees and expenses of Ropes & Gray LLP (or its predecessor), counsel to Halpern Denny, which fees and expenses relate to services rendered since May 1, 2003 in connection with Halpern Denny's investment in the Company, including, without limitation, the transactions contemplated by this Agreement, provided, however, that such fees and expenses shall not exceed $125,000. [Remainder of this page intentionally left blank] 17 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers or authorized representatives as of the date first written above. NEW WORLD RESTAURANT GROUP, INC. By:_______________________ Name: Title: BROOKWOOD NEW WORLD INVESTORS, L.L.C. By:_______________________ Name: Title: NWCI HOLDING, LLC By:_______________________ Name: Title: GREENLIGHT CAPITAL, L.P. By: GREENLIGHT CAPITAL, L.L.C., its general partner By:_______________________ Name: Title: GREENLIGHT CAPITAL QUALIFIED, L.P. By: GREENLIGHT CAPITAL, L.L.C., its general partner By:_______________________ Name: Title: GREENLIGHT CAPITAL OFFSHORE, LTD. By: GREENLIGHT CAPITAL, INC., its investment advisor By:_______________________ Name: Title: HALPERN DENNY FUND III, L.P. By:_______________________ Name: Title: EX-99.2 4 e992_1001-2003newworld.txt CERTIFICATE OF DESIGNATION Exhibit 99.2 Certificate of Designation NEW WORLD RESTAURANT GROUP, INC. CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES Z PREFERRED STOCK Pursuant to Section 151 of the General Corporation Law of the State of Delaware NEW WORLD RESTAURANT, INC., a corporation duly organized and existing under the laws of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY: That pursuant to the authority contained in Article 4 of its Amended and Restated Certificate of Incorporation and in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware, its Board of Directors has adopted the following resolution creating a new series of preferred stock, par value $0.001 per share, designated as Series Z Preferred Stock: RESOLVED, that there a series of preferred stock, par value $0.001 per share of the Company is hereby created, and that the designation and amount thereof and the voting powers, preferences, and relative, participating, optional and other special rights of such shares of preferred stock shall be as set forth below: 1. Designation and Amount. There is hereby established a series of the Preferred Stock designated "Series Z Preferred Stock" (herein referred to as "Series Z Preferred Stock"), consisting of 57,000 shares and having the relative rights, designations, preferences, qualifications, privileges, limitations, and restrictions applicable thereto as follows. 2. Dividends. The holders of shares of Series Z Preferred Stock shall not be entitled to receive any dividends, except as provided in Section 4(c)(v) hereof. 3. Liquidation Preference. (a) In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of the Series Z Preferred Stock shall be entitled to receive, on a pro rata basis, such amount, paid prior and in preference to any distribution of any of the assets or surplus funds of the Corporation to the holders of the Common Stock or any other class or series of stock, other than any class or series approved in accordance with Section 5 (any such other class or series, collectively with the Common Stock, are referred to as "Junior Stock") by reason of their ownership thereof, an amount equal to $1,000 (as adjusted for any stock dividends, combinations or splits with respect to such shares) per share of Series Z Preferred Stock then outstanding (the "Liquidation Preference") plus any dividends accrued but unpaid under Section 4(c)(v), if any. If upon the occurrence of such event, the assets and funds thus distributed among the holders of the Series Z Preferred Stock shall be insufficient to permit the payment to the holders of the Series Z Preferred Stock the full amounts to which they otherwise would be entitled, the holders of Series Z Preferred Stock shall share ratably in any distribution of the entire assets and funds of the Corporation legally available for distribution pro rata in proportion to the respective liquidation preference amounts which would otherwise be payable upon liquidation with respect to the outstanding shares of the Series Z Preferred Stock if all liquidation preference dollar amounts with respect to such shares were paid in full. (b) Upon the completion of the distribution required by subparagraph (a) of this Section 2, the remaining assets and funds of the Corporation legally available for distribution, if any, shall be distributed among the holders of the Common Stock pro rata based on the number of shares of Common Stock held by each, and the holders of Series Z Preferred Stock shall not be entitled to participate in such distribution. 4. Redemption. The shares of Series Z Preferred Stock shall be redeemable as follows: (a) Optional Redemption. (i) The shares of Series Z Preferred Stock will be redeemable at the election of the Corporation, as a whole or from time to time in part, at any time ("Optional Redemption Date") on not less than 5 nor more than 60 days' prior notice (the "Redemption Notice"), for an amount, payable in cash, equal to 100% of the aggregate Liquidation Preference for such shares (the "Redemption Price"). (ii) If less than all the shares of Series Z Preferred Stock are to be redeemed, the particular shares of Series Z Preferred Stock to be redeemed will be determined on a pro rata basis. If less than all of the shares of Series Z Preferred Stock are to be redeemed, the Redemption Notice that relates to such shares of Series Z Preferred Stock shall state the portion of the shares of Series Z Preferred Stock to be redeemed. A new Series Z Preferred Stock certificate representing the unredeemed shares of Series Z Preferred Stock will be issued in the name of the holder thereof upon cancellation of the original certificate for Series Z Preferred Stock. 2 (b) Mandatory Redemption. (i) All outstanding shares of Series Z Preferred Stock shall be redeemed (subject to the legal availability of funds therefor) in whole on the earlier of June 30, 2009 or the effective time of a Merger or Change of Control (in each case, as hereinafter defined) (the "Mandatory Redemption Date" and together with the "Optional Redemption Date", the "Redemption Date"), at the Redemption Price, in each case, payable in cash. (ii) As used herein, "Merger" shall mean a consolidation or merger of the Corporation or any direct or indirect subsidiary of the Corporation with or into any other entity, other than a merger (i) in which the Corporation is the surviving corporation, (ii) which will not result in more than 50% of the capital stock of the Corporation being owned of record or beneficially by persons other than (A) the holders of such capital stock immediately prior to such merger and (B) and Thomas Weisel Capital Partners, L.P., Bruckmann, Rosser, Sherrill & Co. L.L.C. and Triarc Companies, Inc. and their respective affiliates, and (iii) in which each share of Series Z Preferred Stock outstanding immediately prior to such merger will be an identical share of Series Z Preferred Stock of the Corporation outstanding after such merger. (iii) As used herein, "Change of Control" shall mean any transaction or event occurring on or after _________ __, 2003 as a direct or indirect result of which (a) any person or any group (other than Halpern Denny Fund III, L.P., Brookwood New World Investors, L.L.C., NWCI Holdings, LLC, Greenlight Capital, L.P., Greenlight Capital Qualified, L.P., Greenlight Capital Offshore, Ltd., Thomas Weisel Capital Partners, L.P., Bruckmann, Rosser, Sherrill & Co. L.L.C. and Triarc Companies, Inc. and their respective affiliates) shall (1) beneficially own (directly or indirectly) in the aggregate equity interests of the Corporation having 50% or more of the aggregate voting power of all equity interests of the Corporation at the time outstanding or (2) have the right or power to appoint a majority of the board of directors of the Corporation; (b) during any period of two consecutive years, individuals who at the beginning of such period constituted the board of directors of the Corporation (together with any new directors) (i) whose election by such board of directors or whose nomination for election by the shareholders of the Corporation was approved by a vote of a majority of the directors of the Corporation then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved and (ii) appointed to the board of directors of the Corporation within eighteen months after __________ __, 2003) cease for any reason to constitute at least a majority of the board of directors of the Corporation then in office; (c) any event or circumstance constituting a "change of control" under any documentation evidencing or governing any indebtedness of the Corporation in a principal amount in excess of $10.0 million shall occur which results in an obligation of the Corporation to prepay (by acceleration or otherwise), purchase, offer to purchase, redeem or defease all or a portion of such indebtedness; or (d) involves the sale of all or substantially all of the Corporation's assets or the assets of its subsidiaries. 3 (c) Procedure for Redemption. (i) Not more than 60 and not less than 5 days prior to any Optional Redemption Date, and as soon as practical prior to the Mandatory Redemption Date, written notice (the "Redemption Notice") shall be given by first-class mail, postage prepaid, to each holder of record of shares of Series Z Preferred Stock to be redeemed on the record date fixed for such redemption of the shares of Series Z Preferred Stock at such holder's address as the same appears on the stock register of the Corporation. The Redemption Notice shall state: (A) the Redemption Price; (B) whether all or less than all of the outstanding shares of Series Z Preferred Stock are to be redeemed and the total number of shares of Series Z Preferred Stock being redeemed; (C) the number of shares of Series Z Preferred Stock held by the holder that the Corporation intends to redeem; (D) the Redemption Date; (E) that the holder is to surrender to the Corporation, at the place or places designated in such Redemption Notice, its certificates representing the shares of Series Z Preferred Stock to be redeemed; and (F) the name of any bank or trust company performing the duties referred to in subsection (c)(iv) below. (ii) On or before the Redemption Date, each holder of shares of Series Z Preferred Stock to be redeemed shall surrender the certificate or certificates representing such shares of Series Z Preferred Stock to the Corporation, in the manner and at the place designated in the Redemption Notice, and on the Redemption Date the full redemption price for such shares of Series Z Preferred Stock shall be payable in cash to the person whose name appears on such certificate or certificates as the owner thereof, and each surrendered certificate shall be returned to authorized but unissued shares of Series Z Preferred Stock. In the event that less than all of the shares of Series Z Preferred Stock represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares of Series Z Preferred Stock. (iii) Unless the Corporation defaults in the payment in full of the Redemption Price, the holders of the shares of Series Z Preferred Stock called for redemption shall cease to have any further rights with respect thereto on the Redemption Date, other than the right to receive the Redemption Price, without interest. Until the Redemption Price is paid in full, the holders of shares of Series Z Preferred Stock shall have all preferences and rights, including, without limitation, the right to receive dividends as set forth in Section 4(d), of holders of the Series Z Preferred Stock. (iv) If a Redemption Notice shall have been duly given or if the Corporation shall have given to the bank or trust company hereinafter referred to irrevocable authorization promptly to give such notice, and if on or before the Redemption Date specified therein the funds necessary for such redemption shall have been deposited by the Corporation with such bank or trust company in trust for the pro rata benefit of the holders of the shares of Series Z Preferred Stock called for redemption, then, notwithstanding that any certificate for 4 shares of Series Z Preferred Stock so called for redemption shall not have been surrendered for cancellation, from and after the time of such deposit, all shares so called, or to be so called pursuant to such irrevocable authorization, for redemption shall no longer be deemed to be outstanding and all rights with respect of such shares of Series Z Preferred Stock shall forthwith cease and terminate, except only the right of the holders thereof to receive from such bank or trust company at any time after the time of such deposit the funds so deposited, without interest. The aforesaid bank or trust company shall be organized and in good standing under the laws of the United States of America, and shall have capital, surplus and undivided profits aggregating at least $100,000,000 according to its last published statement of condition, and shall be identified in the Redemption Notice. Any interest accrued on such funds shall be paid to the Corporation from time to time. Any funds so set aside or deposited, as the case may be, and unclaimed at the end of three years from such Redemption Date shall, to the extent permitted by law, be released or repaid to the Corporation, after which repayment the holders of the shares of Series Z Preferred Stock so called for redemption shall look only to the Corporation for payment hereof. (v) If the Corporation fails to discharge any redemption obligation pursuant to Section 4(b) with respect to the Series Z Preferred Stock, the holders of Series Z Preferred Stock shall be entitled to receive cumulative annual dividends payable quarterly in cash, on each March 31, June 30, September 30 and December 31 (each, a "Dividend Payment Date"), commencing on the first of such dates to occur after the Redemption Date, at the rate per annum of the Liquidation Preference for such shares equal to 250 basis points higher than the highest rate paid by the Corporation on its funded indebtedness on each Dividend Payment Date, until such shares are redeemed in full as required by this Section 4 (and in such event the Redemption Price will be increased by the amount of such accrued and unpaid dividends). Dividends on the Series Z Preferred Stock shall be cumulative so that if, for any dividend accrual period, dividends at the rate hereinabove specified are not declared and paid or set aside for payment, the amount of accrued but unpaid dividends shall accumulate, and shall be added to the dividends payable for subsequent dividend accrual periods. If the funds legally available for the payment of such dividends are insufficient to pay in full the dividends payable on all outstanding shares of Series Z Preferred Stock, the total available funds may be paid in partial dividends to the holders of the outstanding shares of Series Z Preferred Stock ratably in proportion to the fully accrued dividends to which they are entitled and the remainder of such accrued but unpaid dividends shall be paid as soon thereafter as funds are legally available. Each issued and outstanding share of Series Z Preferred Stock shall entitle the holder of record thereof to receive an equal proportion of said dividends (adjusted for issuance dates). No dividends or other distributions of any kind shall be declared or paid on, nor shall the Corporation redeem, purchase or acquire any shares of the Common Stock other than stock dividends and distributions of the right to purchase common stock and repurchase any such rights in accordance with the Rights Agreement dated June 7, 1999, unless all dividends on the Series Z Preferred Stock accrued for all past dividend periods shall have been paid in full in cash. 5 5. Protective Rights. So long as any shares of Series Z Preferred Stock remain outstanding, the Corporation shall not, and shall not permit any of its direct or indirect subsidiaries, in each case, without the vote or written consent by the holders of at least a majority of the then outstanding shares of the Series Z Preferred Stock, voting together as a single class (such consent, in the case of Section 5(b) only, shall not be unreasonably withheld): (a) amend, alter or repeal any provision of, or add any provision to, this Certificate of Designation, Preferences and Rights of Series Z Preferred Stock, whether by merger, consolidation or otherwise; provided, however, that no vote or written consent of the holders of the Series Z Preferred Stock will be required by this paragraph (a) or otherwise in the event of a Merger or Change of Control that results in the full redemption of the Series Z Preferred Stock at the Redemption Price, in cash, at the effective time of such Merger or Change of Control; (b) subject to clause (a) above, amend, alter or repeal any provision of, or add any provision to, the Corporation's Certificate of Incorporation or bylaws, whether by merger, consolidation or otherwise, except as may be required to authorize a Certificate of Designation for Junior Stock or to increase the authorized amount of any Junior Stock, including Junior Stock issued to management or employees under equity incentive plans; provided, however, that no vote or written consent of the holders of the Series Z Preferred Stock will be required by this paragraph (b) or otherwise in the event of a Merger or Change of Control that results in the redemption of the Series Z Preferred Stock at the Redemption Price, in cash, at the effective time of such Merger or Change of Control; (c) authorize or issue shares of any class of stock having any preference or priority as to dividends, assets or payments in liquidation superior to or on a parity with the Series Z Preferred Stock, including, without limitation, the Series Z Preferred Stock, whether by merger consolidation or otherwise; provided, however, that no vote or written consent of the holders of the Series Z Preferred Stock will be required by this paragraph (c) or otherwise in the event of a Merger or Change of Control that results in the full redemption of the Series Z Preferred Stock at the Redemption Price, in cash, at the effective time of such Merger or Change of Control; (d) take any action that results in the Corporation or any direct or indirect subsidiary or subsidiaries of the Corporation incurring or assuming indebtedness (including the guaranty of any indebtedness) in excess of the greater of (i) $185 million and (ii) 3.75 times EBITDA (as hereinafter defined) for the trailing 12-month period prior to such date; (e) consummate any Merger or Change of Control that does not result in the redemption of the Series Z Preferred Stock at the Redemption Price, payable in cash, at the effective time of the Merger or Change of Control transaction; 6 (f) make any Restricted Payment (as defined in Exhibit A attached hereto) in violation of the covenant set forth on Exhibit A attached hereto, which is incorporated in its entirety into this Section 5; and (g) enter into any agreement to do any of the foregoing items set forth in (a) through (f) of this Section 5. As used herein, "EBITDA" means either (A) earnings or (B) net loss plus (i) provision for income taxes, (ii) permanent impairment in the value of investment in debt securities, (iii) other expense or less other income, (iv) loss from extinguishment of Greenlight obligation, (v) interest expense, (vi) impairment charge in connection with realization of assets held for sale, (vii) provision for integration and reorganization costs, (viii) depreciation and amortization, and (ix) cumulative change in the fair value of derivatives if such item is an expense. If cumulative change in the fair value of derivatives is an income item, instead of being added to (A) earnings or (B) net loss, it should be deducted therefrom. 6. Voting Rights. (a) The holders of Series Z Preferred Stock, except as otherwise required under the laws of the State of Delaware or as set forth herein, shall not be entitled or permitted to vote on any matter required or permitted to be voted upon by the stockholders of the Corporation. (b) In any case in which the holders shall be entitled to vote pursuant to this Section 6 or pursuant to the laws of the State of Delaware, each holder shall be entitled to one vote for each share of Series Z Preferred Stock held. (c) In lieu of voting at a meeting, holders may act by written consent in accordance with Section 228 of the General Corporation Law of the State of Delaware ("GCL"). (d) Except as otherwise required by the GCL, holders of at least a majority of the then outstanding shares of Series Z Preferred Stock, voting or consenting, as the case may be, separately as a class, may waive compliance with any provisions of this Amended Certificate of Designation. 7 IN WITNESS WHEREOF, the Corporation has executed this Certificate of Designation to be prepared and executed by the officers named below as of this __ day of ______, 2003. NEW WORLD RESTAURANT GROUP, INC. By:_________________________________ Name: Anthony D. Wedo Title: Chief Executive Officer By:_________________________________ Name: Richard Lovely Title: Assistant Secretary Exhibit A The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any distribution on account of the Company's or any of its Subsidiaries' Equity Interests (other than dividends or distributions payable in Equity Interests (other than Disqualified Capital Stock) of the Company or dividends or distributions payable to the Company or any Wholly-Owned Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any Subsidiary or other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Wholly-Owned Subsidiary of the Company and other than any such purchase, redemption or acquisition constituting a Permitted Investment); (iii) voluntarily purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments") unless, at the time of such Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (b) immediately after giving effect to such transaction, on a pro forma basis as if such transaction had occurred at the beginning of the applicable four-quarter period, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.12 of the Indenture dated as of July __, 2003 among the Company, as issuer, the subsidiary guarantors named therein and The Bank of New York, as trustee (the "Indenture"); and (c) the amount of such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the Issue Date, is less than the sum of (x) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the Issue Date to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, 100% of such deficit), plus (y) 100% of the aggregate net cash proceeds received by the Company from the issuance or sale of Equity Interests of the Company (other than Equity Interests sold to a Subsidiary of the Company and other than Disqualified Capital Stock) since the Issue Date, plus (z) 100% of the Net Cash Proceeds received by the Company from the issuance or sale, other than to a Subsidiary of the Company, of any debt security of the Company that has been converted into Equity Interests of the Company (other than Disqualified Capital Stock) since the Issue Date. For purposes of this clause (c) the amount of any Restricted Payment paid in property other than cash shall be the fair market value of such property as determined reasonably and in good faith by the Board of Directors of the Company. If no Default or Event of Default shall have occurred and be continuing, the foregoing provisions will not prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of 9 declaration such payment would have complied with the provisions of the Indenture; (ii) the redemption, repurchase, retirement or other acquisition of any Indebtedness or Equity Interests of the Company in exchange for, or solely out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of other Equity Interests of the Company (other than any Disqualified Capital Stock); (iii) the redemption, repurchase or payoff of Purchase Money Obligations; (iv) the redemption, repurchase or payoff of any Indebtedness (including Existing Indebtedness) with proceeds of any Refinancing Indebtedness permitted to be incurred under Section 4.12; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any officer or employee of the Company or its Subsidiaries; provided, however, that the aggregate amount of all such repurchases, redemptions and other acquisitions and retirements under this clause (v) on or after the Issue Date shall not exceed $1 million; (vi) the purchase or other acquisition of Warrants required by the terms of the Warrant Agreement; (vii) payments or distributions to dissenting stockholders required by applicable law pursuant to or in connection with a consolidation, merger or Asset Sale that complies with all applicable provisions of the Indenture; (viii) application of the proceeds from the issuance of the Notes on the Issue Date as described under "Use of Proceeds" in the Offering Circular; and (ix) the repurchase, redemption or other repayment of the Series Z Preferred Stock to be issued upon the closing of the Equity Restructuring in the event of a Change of Control in accordance with the mandatory redemption provision of the Series Z Certificate of Designations contemplated by the Equity Restructuring Agreement; provided that, in accordance with the provisions of Section 4.14, prior to such repurchase, redemption or other repayment the Paying Agent has received a deposit of an amount equal to 101% of the aggregate principal amount of the Notes outstanding on the date of the Change of Control, plus accrued interest thereon through the Change of Control Payment Date (as evidenced by an acknowledgment of receipt of such deposit by the Paying Agent) prior to such repurchase, redemption or other repayment. The Board of Directors may designate any Subsidiary to be a Non Restricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greatest of (i) the net book value of such Investments at the time of such designation, (ii) the fair market value of such Investments at the time of such designation and (iii) the original fair market value of such Investments at the time they were made. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if the Subsidiary so designated otherwise meets the definition of a Non Restricted Subsidiary. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.10 of the Indenture were 10 computed, which calculations may be based upon the Company's latest available quarterly financial statements. Capitalized terms used in this Exhibit and not otherwise defined shall have the meanings attributed to such terms in the Indenture as of the date of execution of the Indenture whether or not the Indenture shall be amended, modified, terminated or expire after such date. -----END PRIVACY-ENHANCED MESSAGE-----