EXHIBIT 10.20
AMENDMENT TO SECOND AMENDED AND RESTATED LEASE AND LICENSE
FINANCING AND PURCHASE OPTION AGREEMENT
THIS AMENDMENT TO SECOND AMENDED AND RESTATED LEASE AND LICENSE
FINANCING AND PURCHASE OPTION AGREEMENT (this "Amendment"), dated as of March [
], 2005, is by and between ARABICA FUNDING, INC., a Delaware corporation
("Arabica") and CARIBOU COFFEE COMPANY, INC., a Minnesota corporation (the
"Company").
RECITALS
A. Arabica and the Company are parties to the Second Amended and
Restated Lease and License Financing and Purchase Option Agreement dated as of
June 29, 2004 (as in effect from time to time, the "Master Lease"). Capitalized
terms used herein without definition have the meanings assigned to them in the
Master Lease.
B. The Company has requested certain amendments to the Master Lease
and the consent of Arabica to certain actions of the Company, and Arabica is
willing to effect such amendments, and consent to such actions, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
I. AMENDMENTS TO MASTER LEASE AND CONSENT. Subject to the satisfaction of
each of the conditions set forth herein, the Master Lease is hereby amended as
follows:
A. Definitions. Section 1(a) of the Master Lease is amended as
follows:
1. By inserting the following new definition in
alphabetical order:
"Management Fee Payments" means, for any period,
payments by the Company or any of its Subsidiaries of any
management fee to Crescent Capital Investments Inc. or any of
its affiliates.
2. By amending the definition of "Consolidated EBITDA" (a)
by replacing the word "and" following subclause (f) thereof with
a comma, and adding the words "and (h) Management Fee Payment
expenses" after clause (g) thereof.
B. Restricted Payments. Section 22(f) of the Master Lease is
amended (1) by deleting the word "and" at the end of clause (i) thereof, (2) by
replacing the period at the end of clause (ii) thereof with "; and" and (3) by
adding the following new clause (iii) thereof:
(iii) the Company and its Subsidiaries may make Management Fee
Payments under the Management Advisory Agreement, dated December 27,
2000, between the Company and Crescent Capital Investments, Inc. (the
"Management Agreement"), provided that:
(A) no such payment may be made if, either before or
after giving effect thereof, any Default or Event of Default
shall have occurred and be continuing, or if, after giving
effect thereto, the Company would not be in compliance, on a pro
forma basis (as if such payment had been made on the first day
of each applicable period) with the covenants set forth in
Section 20 hereof; and
(B) the aggregate amount of such payments shall not
exceed, in any twelve-month period, the sum of (1) $200,000 and
(2) any amount theretofore accrued under the Management
Agreement and not permitted to be paid as a result of the
limitation set forth in clause (A) above.
C. Representation and Warranties. Section 19(r)(ii) is hereby
amended by inserting the word "lists" immediately after "19(r)(ii)".
D. Consent. Arabica hereby consents to the formation by the Company
of Caribou Coffee Development Company, Inc. ("Caribou Development"), a direct
Wholly-Owned Subsidiary of the Company.
E. Compliance Certificate. Exhibit A to the Lease Agreement is
hereby restated in its entirety in the form attached as Exhibit A hereto.
F. No Further Amendments. Except as specifically amended hereby,
the text of the Master Lease and all other Lease/Purchase Documents shall remain
unchanged and in full force and effect.
II. REFERENCES IN LEASE/PURCHASE DOCUMENTS; CONFIRMATION OF SECURITY. All
references to the Master Lease in all Lease/Purchase Documents shall, from and
after the date hereof, refer to the Master Lease, as amended by this Amendment,
and all obligations of the Company under the Lease/Purchase Documents shall be
secured by and be entitled to the benefits of the Company Security Documents.
All Company Security Documents heretofore executed by the Restricted Group shall
remain in full force and effect and, by the Company's signature hereto, such
Company Security Documents are hereby ratified and affirmed.
III. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents and warrants to, and covenants and agrees with Arabica that:
A. The execution and delivery of this Amendment and the other
documents described in Section IV.A. hereof (together with this Amendment, the
"Related Documents") to which any member of the Restricted Group is a party have
been duly authorized by all requisite action on the part of such member.
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B. The representations and warranties of each member of the
Restricted Group contained in the Master Lease and the other Lease/Purchase
Documents are true and correct in all material respects on and as of the date of
this Amendment as though made at and as of such date, except to the extent (a)
such representations and warranties expressly relate to an earlier date (and the
representations and warranties set forth in Section 19(a) and Section 19(q)
(relating solely to the Confidential Information Memorandum) of the Master Lease
shall be construed to relate only to the date of the Master Lease and to the
Closing Date), in which case each such representation and warranty shall be true
and correct in all material respects as of such earlier date and (b) of
inaccuracies resulting from transactions permitted under the Lease/Purchase
Documents.
C. No member of the Restricted Group is required to obtain any
consent, approval or authorization from, or to file any declaration or statement
with, any governmental instrumentality or other agency or any other person or
entity in connection with or as a condition to the execution, delivery or
performance of this Amendment or any of the other Related Documents.
D. Each of the Related Documents constitutes the legal, valid and
binding obligation of each member of the Restricted Group signatory thereto,
enforceable against it in accordance with its respective terms, subject to
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the rights and remedies of creditors generally or the application of principles
of equity, whether in any action at law or proceeding in equity, and subject to
the availability of the remedy of specific performance or of any other equitable
remedy or relief to enforce any right thereunder.
IV. CONDITIONS. The willingness of Arabica to amend the Master Lease as
provided above, and the effectiveness of this Amendment, are subject to the
following conditions precedent:
A. The members of the Restricted Group shall have executed and
delivered to Arabica all documents and agreements required under the Company
Security Documents in connection with the Company's formation of Caribou
Development.
B. The members of the Restricted Group shall have delivered to
Arabica true and complete copies of any required stockholders' and/or directors'
consents and/or resolutions, authorizing the execution and delivery of the
Related Documents, certified by the Secretary of each such member.
C. The members of the Restricted Group shall have delivered to
Arabica such other supporting documents and certificates as Arabica, any
Registered Holder or their respective counsel may reasonably request.
D. All legal matters incident to the transactions hereby
contemplated shall be reasonably satisfactory to Arabica's and the Registered
Holders' respective counsel.
V. INCREASE IN REFERENCE AMOUNT, ETC. This Agreement constitutes (a) the
parties' agreement to increase the Reference Amount to $60,000,000, as
contemplated by the
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definition of "Reference Amount" set forth in the Master Lease and (b) the
parties' agreement to change the limitation on total amounts paid by Arabica, as
Purchaser under the Asset Purchase Agreement, to $60,000,000, as contemplated by
clause (i) of the seventh sentence of Section 1.1 of the Asset Purchase
Agreement.
VI. MISCELLANEOUS.
A. As provided in the Master Lease, the Company agrees to reimburse
Arabica and the Registered Holders upon demand for all reasonable fees and
disbursements of counsel incurred in connection with the preparation of this
Amendment and the other Related Documents.
B. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York.
C. This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts
hereof, all of which counterparts shall together constitute one and the same
agreement. Delivery of an executed signature page of this Amendment by facsimile
transmission shall be effective as an in-hand delivery of an original executed
counterpart hereof.
[The next pages are the signature pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as a sealed instrument by their duly authorized representatives,
all as of the day and year first above written.
ARABICA FUNDING, INC.
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President
CARIBOU COFFEE COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
