**Exhibit 10.28****FIFTH AMENDMENT TO CREDIT AGREEMENT**     **THIS FIFTH AMENDMENT TO CREDIT AGREEMENT**(this “Amendment”), dated as of February 13,2008, is by and between **ARABICA FUNDING, INC.**, a Delaware corporation (the “Borrower”), theseveral banks and other financial institutions or entities from time to time parties to thisAgreement (the “Lenders”), and **BANK OF AMERICA, N.A.**, as successor-by-merger to FleetNational Bank, as administrative agent (the “Administrative Agent”).**RECITALS**     A. The Borrower, the Lenders and the Administrative Agent are parties to the Credit Agreementdated as of June 29, 2004 (as amended and in effect from time to time, the “CreditAgreement”). Capitalized terms used herein without definition have the meanings assigned tothem in the Credit Agreement.     B. The Borrower has requested certain amendments to the Credit Agreement and the consent ofthe Lenders to the Borrower’s execution and delivery of an amendment to the Master Lease. TheLenders signing below are willing to effect such amendment and consent to such execution anddelivery, on the terms and conditions hereinafter set forth.     **NOW, THEREFORE**, for good and valuable consideration, the receipt and sufficiency of which ishereby acknowledged, the parties hereto agree as follows:**I.****AMENDMENT TO CREDIT AGREEMENT AND CONSENT**. Subject to the satisfaction of each of theconditions set forth herein, the Credit Agreement is hereby amended as follows:A. Definitions. Section 1.1 of the Credit Agreement is hereby amended as follows:1. By amending and restating the definition of “Consolidated EBITDA” in its entirety asfollows:          “Consolidated EBITDA”: for any period, Consolidated Net Incomefor such period plus, without duplication and to the extentreflected as a charge in the statement of such Consolidated Net Income forsuch period, the sum of (a) income tax expense, (b) Consolidated InterestExpense, (c) depreciation and amortization expense (including amortizationof debt acquisition cost), (d) earnings attributable to minority interests,(e) any extraordinary expenses, charges or losses, (f) other non-cashcharges, and (g) Pre-Opening Expenses, and minus, (a) to the extentincluded in the statement of such Consolidated Net Income
 

 
for such period,the sum of (i) any extraordinary, unusual or non-recurring income or gains(including, whether or not otherwiseincludable as a separate item in the statement of such Consolidated NetIncome for such period, gains on the sales of assets outside of the ordinarycourse of business) and (ii) any other non-cash income or credits and(b) any cash payments made during such period in respect of items describedin clause (e) and/or (f) above subsequent to the fiscal quarter in which therelevant non-cash expenses, charges or losses were reflected as a charge inthe statement of Consolidated Net Income, all as determined on aconsolidated basis for the Company and its Subsidiaries.2. By amending and restating the table set forth in the definition of “Pricing Grid” in itsentirety as follows:             ConsolidatedSenior Applicable Margin for Applicable Margin for  LeverageRatio Eurodollar Loans COF Loans Commitment Fee RateGreater than or equal to1.0 to 1.0  3.00%  4.00%  0.500%Greater than or equalto 0.5 to 1.0 but lessthan 1.0 to 1.0  2.50%  3.50%  0.375%Less than 0.5 to 1.0  2.25%  3.25%  0.375%     3. By amending and restating the last sentence in the definition of “Revolving Commitment” “in its entirety as follows:The amount of the Total Revolving Commitments as of February 13, 2008 is$20,000,000.     B. Financial Covenants. Section 7.1 of the Credit Agreement is hereby amended asfollows: 1. By amending and restating Section 7.1(a) in its entirety as follows:     (a) Maximum Senior Leverage Ratio. Permit the ratio (the“Senior Leverage Ratio”) of the Consolidated Funded Indebtedness ofthe Company and its Subsidiaries (excluding any Additional Subordinated Debtincluded therein) at March 30, 2008 and each Quarterly Date thereafter tothe Consolidated EBITDA of the Company for the Reference Period ending onsuch Quarterly Date to be greater than 1.75:1.00. 2. By amending and restating Section 7.1(b) in its entirety as follows:     (b) Minimum Consolidated EBITDA. Permit the ConsolidatedEBITDA of the Company for the Reference Period ending on March 30, 2008 andfor the Reference Period ending on each Quarterly Date thereafter to be lessthan $9,000,000. 3. By amending and restating Section 7.1(c) in its entirety as follows:
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     (c) Minimum Interest Coverage Ratio. Permit the ratio of(i) the Consolidated EBITDAR of the Company for any Reference Period endingon any Quarterly Date falling in any period referred to below to (ii) thesum of Consolidated Interest Expense plus Consolidated Rental Expense of theCompany and its Subsidiaries for such Reference Period to be less than theratio specified below for the period during which such date falls.       Minimum InterestQuarterlyDates Coverage RatioJanuary 1, 2008 through June 30, 2008  1.38:1.00 July 1, 2008 through September 30, 2008  1.40:1.00 October 1, 2008 and thereafter  1.45:1.00  4. By amending and restating Section 7.1(d)(ii) in its entirety as follows:     (ii) Permit the Capital Expenditures made by the Company and itsSubsidiaries in any fiscal year to exceed $12,500,000. 5. By amending and restating Section 7.1(f) in its entirety as follows:     (f) New Store Commitments. Permit the Company to enter intoany New Store Commitment if at such time (A) the Coffeehouse Level EBITDAMargin for the Reference Period ended December 30, 2007 and each ReferencePeriod thereafter is less than 15% of Coffeehouse Level Sales for suchReference Period, or (B) the aggregate Available Revolving Commitments ofall Lenders are less than (1) the budgeted amount of Capital Expendituresfor outstanding New Store Commitments (including the New Store Commitment inquestion, and assuming that the budgeted amount of Capital Expenditures forany New Store Commitment for which a Capital Expenditure budget has not beendetermined is $300,000), less (2) the aggregate amount of CapitalExpenditures made toward New Store Commitments prior to the opening of eachsuch store.     C. Commitments. Schedule 1.1(A) of the Credit Agreement is amended andrestated in its entirety in the form attached hereto as Annex I.     D. Amendment to Lease/Purchase Documents. The Lenders hereby agree to the form of theSixth Amendment to Second Amended and Restated Lease and License Financing and Purchase OptionAgreement attached hereto as Exhibit A (the “Amendment to Lease/PurchaseDocuments”).     E. No Further Amendments. Except as specifically amended hereby, the text of theCredit Agreement and all other Loan Documents shall remain unchanged and in full force and effect.**II.****REFERENCES IN LOAN DOCUMENTS; CONFIRMATION OF SECURITY****.**All references to the “CreditAgreement” in all Loan Documents shall, from and after the date hereof, refer to the CreditAgreement, as amended by this Amendment, and all obligations of the Borrower under the LoanDocuments shall be secured by and be entitled to the benefits of theSecurity Documents. All Security Documents heretofore executed by the Restricted Group shallremain in full force and effect and, by the Borrower’s signature hereto, and Holdings’ and theCompany’s and its Subsidiaries signatures to such Amendment to Lease/Purchase Documents, suchSecurity Documents are hereby ratified and affirmed.
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**III.****REPRESENTATIONS, WARRANTIES AND COVENANTS**. The Borrower hereby represents andwarrants to, and covenants and agrees with the Lenders that:     A. The execution and delivery of this Amendment has been duly authorized by all requisiteaction on the part of the Borrower.     B. The representations and warranties of the Borrower contained in the Credit Agreement andthe other Loan Documents are true and correct in all material respects on and as of the date ofthis Amendment as though made at and as of such date, except to the extent (a) such representationsand warranties expressly relate to an earlier date (and the representations and warranties setforth in Section 4.1 and Section 4.18 (relating solely to the Confidential Offering Memorandum) ofthe Credit Agreement and Section 19(a) and Section 19(q) (relating solely to the ConfidentialOffering Memorandum) of the Master Lease shall be construed to relate only to the date of theCredit Agreement and the Master Lease, respectively, and to the Closing Date), in which case eachsuch representation and warranty shall be true and correct in all material respects as of suchearlier date and (b) of inaccuracies resulting from transactions permitted under the LoanDocuments.     C. Attached hereto as Exhibit A is a true, correct and complete copy of the Amendmentto Lease/Purchase Documents.     D. No member of the Restricted Group is required to obtain any consent, approval orauthorization from, or to file any declaration or statement with, any governmental instrumentalityor other agency or any other person or entity in connection with or as a condition to theexecution, delivery or performance of this Amendment.     E. This Amendment constitutes the legal, valid and binding obligation of the Borrower,enforceable against it in accordance with its terms, subject to bankruptcy, insolvency,reorganization, moratorium and similar laws affecting the rights and remedies of creditorsgenerally or the application of principles of equity, whether in any action at law or proceeding inequity, and subject to the availability of the remedy of specific performance or of any otherequitable remedy or relief to enforce any right thereunder.**IV.****CONDITIONS****.**     A. This Amendment shall become effective on the first date on which the Borrower shall haveexecuted and delivered to the Administrative Agent (or shall have caused to be executed anddelivered to the Administrative Agent by the appropriate persons) the following:1. This Amendment;2. The Amendment to Lease/Purchase Documents between the Borrower and the Company;
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3. Payment in immediately available funds of all fees agreed to be paid by theBorrower in connection with this Amendment, including without limitation, afully-earned and non-refundable amendment fee in the amount of Seventy-Five ThousandDollars ($50,000.00), which amendment fee shall be payable to the AdministrativeAgent for pro rata distribution to Bank of America, N.A., in its capacity as aLender (“BANA”), and Wells Fargo Bank, N.A (“Wells Fargo”); and4. Such other supporting documents and certificates as the Administrative Agent orits counsel may reasonably request.     B. There shall have been executed and delivered to the Administrative Agent (i) an Assignmentand Assumption Agreement by and between M&I Marshall & Ilsley Bank (“M&I”) and BANA, and(ii) an Assignment and Assumption Agreement by and between M&I and Wells Fargo, each in form andsubstance satisfactory to the Administrative Agent, pursuant to which M&I sells and assigns to BANAand Wells Fargo respectively, and each purchases from M&I and assumes the Assigned Interestdescribed and defined in their respective Assignment and Assumption Agreements (the collectiveAssigned Interests being all of M&I’s Revolving Commitment), such that after giving effect to suchAssignment and Assumption Agreements, BANA shall hold 50% of the Total Revolving Commitments andWells Fargo shall hold 50% of the Total Revolving Commitments.     C. All legal matters incident to the transactions contemplated hereby shall be satisfactory tocounsel for the Administrative Agent.**V.****MISCELLANEOUS****.**     A. As provided in the Credit Agreement, the Borrower agrees to reimburse the AdministrativeAgent upon demand for all reasonable fees and disbursements of counsel incurred in connection withthe preparation of this Amendment.     B. This Amendment shall be governed by and construed in accordance with the laws of the Stateof New York.     C. This Amendment may be executed by the parties hereto in several counterparts hereof and bythe different parties hereto on separate counterparts hereof, all of which counterparts shalltogether constitute one and the same agreement. Delivery of an executed signature page of thisAmendment by facsimile transmission shall be effective as an in-hand delivery of an originalexecuted counterpart hereof.*[The next page is the signature page.]*
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     **IN WITNESS WHEREOF,**the parties hereto have caused this Amendment to be duly executed as asealed instrument by their duly authorized representatives, all as of the day and year first abovewritten.       **ARABICA FUNDING, INC.**       By: /s/ Bernardo J. Angelo         Name: Bernardo J. Angelo    Title: Vice Preident       **BANK OF AMERICA, N.A.**, successor-by-merger to Fleet National Bank, as Administrative Agent       By: /s/ Kalens Herold         Name: Kalens Herold    Title: Assistant Vice President       **BANK OF AMERICA, N.A.**, successor-by-merger to FleetNational Bank, as a Lender       By: /s/ John H. Schmidt         Name: John H. Schmidt    Title: Vice President       **WELLS FARGO BANK, N.A.**       By: /s/ J. Nicholas Cole         Name: J. Nicholas Cole    Title: Managing Director
 

 
**ANNEX I****Schedule 1.1(A)****Commitments**     Lenders Amount Bank of America, N.A., as Administrative Agent for the Lenders $10,000,000      Wells Fargo Bank, N.A. $10,000,000      Total Revolving Commitment Amount $20,000,000 
 

 
**EXHIBIT A**Amendment to Lease/Purchase Documents**SIXTH AMENDMENT TO SECOND AMENDED AND RESTATED LEASE AND**