EXHIBIT 10.22
AMENDMENT TO
LICENSE PURCHASE AGREEMENT
THIS AMENDMENT is made and entered into this 18th day of January, 2000,
by and between CNJ Distributing Corp., a Montana corporation, 0000 Xxxx 00xx
Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx (the "Seller") and Founders Food & Xxxxxxx
Ltd., a Minnesota corporation, 0000 Xxxxx Xxxx Xxxx, Xx. Xxxxx Xxxx, Xxxxxxxxx
00000 (the "Purchaser").
R E C I T A L S:
WHEREAS, the Seller and the Purchaser have entered into an agreement,
dated December 20, 1999 (the "Agreement"), pursuant to which the Purchaser will
buy from the Seller On-sale Liquor License No. RL5959 (the "License"),
permitting the sale of alcoholic beverages at 0000 Xxxx 00xx Xxxxxx, Xxxxx
Xxxxx, Xxxxx Xxxxxx; and
WHEREAS, the Seller and the Purchaser wish to amend the Agreement to
provide that the Purchaser will deposit the cash payable at the Closing (as
defined in the Agreement) into an escrow account with a third-party title
company prior to 4:00 p.m. (C.S.T.) on Thursday, February 10, 2000; and
WHEREAS, the Seller and the Purchaser wish to amend the Agreement with
respect to the xxxxxxx money deposit paid to the Seller by the Buyer;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants hereinafter contained, the parties hereto agree (i) that the Purchaser
will deposit the cash payable at the Closing with Tri-County Abstract and Title
Guaranty, Inc. (the "Escrow Agent") prior to 4:00 p.m. (C.S.T.) on Thursday,
February 10, 2000, (ii) that the Seller will cause its counsel to deliver the
affidavit required to effectuate the transfer of the License to the appropriate
governmental authority following receipt by such counsel of written notice from
the Escrow Agent of the Escrow Agent's receipt of the cash payable at the
Closing, (iii) that the Escrow Agent will release the cash payable at the
Closing to the Seller, pursuant to the terms and conditions contained in the
escrow agreement attached hereto as Exhibit A, upon the Escrow Agent's receipt
of written authorization from the Purchaser at the Closing, and (iv) that
Section 3(b) of the Agreement shall be restated in its entirety as follows:
If the City of Sioux Falls fails to approve the transfer of the License
from Seller to Purchaser, through no action, misaction, or other effort
on behalf of Purchaser, Seller shall refund said xxxxxxx money to
Purchaser without interest. If the City of Sioux Falls fails to approve
the transfer of the License from Seller to Purchaser, due to
Purchaser's action, inaction, misuse, or any other affirmative or
non-affirmative act or omission, Seller shall retain, as liquidated
damages, the $10,000 xxxxxxx money payment paid upon execution of this
Agreement. The parties recognize that the Seller will be damaged due to
the legal fees incurred and the loss of opportunity to market the
License for sale during the pendency of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment,
effective the date first above written.
CNJ DISTRIBUTION CORP. FOUNDERS FOOD & XXXXXXX LTD.
By /s/ Xxxxxx Xxxxx By /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx Xxxxx, President Xxxxxx X. Xxxxxxxxx, President
and Chief Executive Officer
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EXHIBIT A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into this ______ day of
January, 2000, by and between CNJ Distributing Corp., a Montana corporation,
0000 Xxxx 00xx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx (the "Seller"), Founders Food &
Xxxxxxx Ltd., a Minnesota corporation, 0000 Xxxxx Xxxx Xxxx, Xx. Xxxxx Xxxx,
Xxxxxxxxx 00000 (the "Purchaser") and Tri-County Abstract and Title Guaranty,
Inc., a Minnesota corporation, 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xx. Xxxxx,
Xxxxxxxxx 00000 (the "Escrow Agent").
R E C I T A L S:
WHEREAS, the Purchaser and the Seller have entered into an agreement
dated December 20, 1999, as amended on January ____, 2000 (the "Agreement"),
pursuant to which the Purchaser will buy from the Seller On-Sale Liquor License
No. RL5959 (the "License"), permitting the sale of alcoholic beverages at 0000
Xxxx 00xx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx;
WHEREAS, the Purchaser and the Seller desire to appoint the Escrow
Agent in connection with the Purchaser's purchase from the Seller of the License
pursuant to the Agreement; and
WHEREAS, the Purchaser, the Seller and the Escrow Agent desire to enter
into an agreement (the "Escrow Agreement") with respect to the escrow of the
cash payable by the Purchaser to the Seller at the Closing (as defined in the
Agreement);
NOW, THEREFORE, in consideration of the premises and agreements set
forth herein, the parties hereto agree as follows:
1. PROCEEDS TO BE PLACED IN ESCROW. The Purchaser shall deliver to the
Escrow Agent prior to 4:00 p.m. (C.S.T.) on Thursday, February 10, 2000, the sum
of one hundred fifty-two thousand five hundred dollars and no cents
($152,500.00), representing the cash payable by the Purchaser to the Seller at
the Closing (the "Escrowed Funds"). The Escrowed Funds shall remain the property
of the Purchaser and shall not be subject to any liens or charges by the Escrow
Agent or judgments or creditors' claims against the Purchaser until released as
hereinafter provided.
2. DISBURSEMENT OF FUNDS. Upon the Escrow Agent's receipt of the
Escrowed Funds, the Escrow Agent shall immediately provide written notice of
such receipt to Xxxxxxx Xxxxxxxx, Esq., counsel for the Seller, at facsimile
number (000) 000-0000. Upon receipt by the Escrow Agent of written authorization
from Purchaser at the Closing or, if said authorization is not received by the
Escrow Agent by 4:00 p.m. (C.S.T.) on Tuesday, March 14, 2000, upon receipt by
the Escrow Agent of written notice from the City of Sioux Falls that the License
was approved for transfer, Escrow Agent shall pay over to Seller the Escrowed
Funds. It is hereby agreed that written notice from the City of Sioux Falls
shall be a form of facsimile confirmation letter that the City of Sioux Falls
has approved the transfer of the License from the Seller to the Purchaser. Any
interest earned on the Escrowed Funds shall belong, and be paid, to Purchaser no
more than five days after the Closing.
The Escrow Agent shall invest the Escrowed Funds in either money market
deposit accounts issued by a bank, short-term securities issued and guaranteed
by the United States government, or money
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market funds; provided that any such investments must pay interest on a daily
basis and allow the immediate withdrawal of funds without premium or penalty.
Escrowed Funds shall not be invested in any other securities or accounts,
including, without limitation, corporate equity or debt securities,
repurchase agreements, bankers' acceptances, commercial papers, or municipal
securities.
3. TERM OF ESCROW. This Escrow Agreement shall terminate upon the
earlier of (i) the Closing as provided in the Agreement, or (ii) the date
ninety (90) days after the date of Purchaser's deposit of the Escrowed Funds.
Upon termination hereof due to clause (i) above, the Escrow Agent shall
disburse the Escrowed Funds in the manner and upon the terms directed in
Section 2 hereof. Upon termination hereof due to clause (ii) above, the
Escrow Agent shall refund the Escrowed Funds to the Purchaser without any
further instruction.
4. DUTY AND LIABILITY OF THE ESCROW AGENT.
(a) The sole duty of the Escrow Agent, other than as herein
specified, shall be to receive the Escrowed Funds and hold them subject
to release, in accordance with the written instructions of the
Purchaser. No implied covenants or obligations shall be inferred from
this Escrow Agreement against the Escrow Agent, nor shall the Escrow
Agent be bound by the provisions of any agreement beyond the specific
terms hereof.
(b) Neither the Escrow Agent nor its officers, directors,
employees, agents, subsidiaries, or affiliates shall be liable
hereunder except for the gross negligence or willful misconduct of any
of them.
(c) The Escrow Agent shall be entitled to rely upon any
certification, instruction, notice or other writing delivered to it in
compliance with the provisions of this Escrow Agreement without being
required to determine the authenticity or the correctness of any fact
stated therein or the propriety or validity thereof. The Escrow Agent
may act in reliance upon any instrument comporting with the provisions
of this Escrow Agreement or signature believed by it, without
independent investigation, to be genuine and may assume that any person
purporting to give notice or receipt or advice or to make any statement
or to execute any document in connection with the provisions hereof has
been duly authorized to do so.
(d) Except as set forth in Section 1, the Escrow Agent does
not have any interest in the Escrowed Funds, but is serving as escrow
holder only and has only possession thereof.
(e) In the event of any dispute between or conflicting claims
by the Purchaser and/or any other person or entity with respect to the
Escrowed Funds deposited hereunder, the Escrow Agent shall be entitled,
at its sole option, to refuse to comply with any and all claims,
demands, or instructions with respect to such property or funds so long
as such dispute or conflict shall continue, and the Escrow Agent shall
not be or become liable in any way to the Purchaser or the Seller for
its failure or refusal to comply with such conflicting claims, demands,
or instructions. The Escrow Agent shall be entitled to refuse to act
until, at its sole option, either such conflicting or adverse claims or
demands shall have been finally determined in a court of competent
jurisdiction or settled by agreement between the conflicting parties as
evidenced in a writing, acceptable to the Escrow Agent in the Escrow
Agent's sole discretion, or the Escrow Agent shall have received
security or an indemnity acceptable to the Escrow Agent in the Escrow
Agent's sole discretion sufficient to hold the Escrow Agent harmless
from and against any and all losses, liabilities, or expenses which the
Escrow Agent may incur by reason of its acting. The Escrow
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Agent may, in addition, elect in its sole option to commence an
interpleader action or seek other judicial relief or orders as the
Escrow Agent may deem appropriate.
(f) The Escrow Agent may resign and be discharged from its
duties hereunder at any time by giving notice of such resignation to
the Purchaser and the Seller specifying a date (not less than 30 days
after the giving of such notice) when such resignation shall take
effect. Promptly after such notice, a successor escrow agent shall be
appointed by the Purchaser and the Seller, such successor escrow agent
to become the Escrow Agent hereunder upon the resignation date
specified in such notice. The Escrow Agent shall continue to serve
until its successor accepts the escrow.
5. ESCROW AGENT'S FEE. The Escrow Agent shall be entitled to be paid
the sum of one hundred fifty dollars and no cents ($150.00) as compensation for
its services hereunder. The fee agreed upon for services rendered hereunder is
intended as full compensation for the Escrow Agent's services as contemplated by
this Escrow Agreement; provided, however, that in the event that the conditions
of this Escrow Agreement are not fulfilled, or the Escrow Agent renders any
material service not contemplated in this Escrow Agreement, or there is any
assignment of interest in the subject matter of this Escrow Agreement, or any
material modification hereof, or if any material controversy arises hereunder,
or the Escrow Agent is made a party to, or justifiably intervenes in, any
litigation pertaining to this Escrow Agreement or the subject matter hereof, the
Escrow Agent shall be reasonably compensated for such extraordinary services and
reimbursed for all costs and expenses, including reasonable attorneys' fees,
occasioned by any delay, controversy, litigation or event, and the same may be
recoverable from the Purchaser and the Seller. The Escrow Agent shall xxxx each
of the Seller and the Purchaser for one-half of the above-referenced fee. Each
of the Seller and the Purchaser shall pay the Escrow Agent said fee within five
(5) business days of their receipt of such invoices.
6. BINDING AGREEMENT AND SUBSTITUTION OF ESCROW AGENT. The terms
and conditions of this Escrow Agreement shall be binding on the creditors or
transferees, or successors in interest, whether by operation of law or
otherwise, of the parties hereto. If, for any reason, the Escrow Agent named
herein should be unable or unwilling to continue to act as the Escrow Agent
hereunder, then the Purchaser and the Seller may substitute another escrow
agent as the Escrow Agent hereunder. Any apportionment of the fees provided
for in Section 5 will be subject to agreement of the parties.
7. GOVERNING LAW; JURISDICTION. This Escrow Agreement shall be
construed, performed, and enforced in accordance with, and governed by, the
internal laws of the State of Minnesota, without giving effect to the
principles of conflicts of laws thereof. Each party hereby consents to the
personal jurisdiction and venue of any court in Minnesota, including the
United States District Court for the District of Minnesota located in
Hennepin County, Minnesota, as a proper forum.
8. SEVERABILITY. In the event that any part of this Escrow Agreement is
declared by any court or other judicial or administrative body to be null, void,
or unenforceable, said provision shall survive to the extent it is not so
declared, and all of the other provisions of this Escrow Agreement shall remain
in full force and effect.
9. AMENDMENTS; WAIVERS. This Escrow Agreement may be amended or
modified, and any of the terms, covenants, representations, warranties, or
conditions hereof may be waived, only by a written instrument executed by the
parties hereto, or in the case of a waiver, by the party waiving compliance. Any
waiver by any party of any conditions, or of the breach of any provision, term,
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covenant, representation, or warranty contained in this Escrow Agreement, in any
one or more instances, shall not be deemed to be, nor construed as, the further
or continuing waiver of such condition, or of the breach of any other provision,
term, covenant, representation, or warranty of this Escrow Agreement.
10. ENTIRE AGREEMENT. This Escrow Agreement contains the entire
understanding among the parties hereto with respect to the escrow contemplated
hereby and supersedes and replaces all prior and contemporaneous agreements and
understanding, oral or written, with regard to such escrow.
11. SECTION HEADINGS. The section headings in this Escrow Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Escrow Agreement.
12. COUNTERPARTS. This Escrow Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement on the date first above written.
THE PURCHASER: THE SELLER:
FOUNDERS FOOD & XXXXXXX LTD. CNJ DISTRIBUTING CORP.
By: By:
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Xxxxxx X. Xxxxxxxxx Xxxxxx Xxxxx
President and Chief Executive Officer President
THE ESCROW AGENT:
TRI-COUNTY ABSTRACT AND TITLE
GUARANTY, INC.
By
-----------------------------------------
Xxxx Xxxxx
President
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