EXHIBIT 10.22
SECOND AMENDED AND RESTATED CALL OPTION LETTER
June 29, 2004
Caribou Coffee Company, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Re: Second Amended and Restated Lease and License
Financing and Purchase Option Agreement
Dear Sirs:
We refer to the Second Amended and Restated Lease and License Financing
and Purchase Option Agreement, dated as of the date hereof, between you and us
(the "AGREEMENT"). Unless otherwise defined herein, terms defined in the
Agreement shall have the same meanings when used in this letter. This Second
Amended and Restated Call Option Letter amends and restates the Amended and
Restated Call Option Letter, dated as of April 25, 2001, issued by us to you. In
consideration of your entering into the Agreement and undertaking the
transactions contemplated by the Agreement, we have agreed to grant to you the
options described below. We therefore agree with you as follows:
1. We hereby grant to you an option (the "CALL OPTION") to purchase all or
a pro rata portion of all of the Assets, exercisable by notice in writing in the
form set out in Schedule 1 hereto (a "CALL OPTION NOTICE") signed by or on
behalf of yourself. Once given, a Call Option Notice may not be withdrawn except
with our consent. The exercise of the Call Option is conditional upon your
payment on the date upon which the purchase of all or a pro rata portion of the
Assets pursuant to the Call Option is to be effected (the "EXERCISE DATE") of
the purchase price for the Assets (the "OPTION PURCHASE PRICE"), as calculated
in accordance with Section 2 hereof. If a pro rata portion of all of the Assets
is to be purchased pursuant to an exercise of the Call Option, such pro rata
portion shall be equal to the pro rata portion that the Specified Acquisition
Cost (as defined below) represents of the aggregate unpaid Acquisition Cost.
2. (a) If a pro rata portion of all of the Assets is to be purchased
pursuant to an exercise of the Call Option, then the Option Purchase Price of
the Assets to be purchased shall be an amount equal to the sum of (i) the
portion of the unpaid Acquisition Cost (the "SPECIFIED ACQUISITION COST")
specified by you in the relevant Call Option Notice, which amount shall at least
be equal to $1,000,000 or a whole multiple thereof, plus (ii) any and all
accrued and unpaid Rent in respect of the Specified Acquisition Cost to the
Exercise Date, plus (iii) $10.
(b) If all of the Assets then subject to the Agreement are to be
purchased pursuant to an exercise of the Call Option, then the Option Purchase
Price of the Assets shall be an amount equal to the sum of (i) the aggregate
unpaid Acquisition Cost of the Assets then subject to the Agreement, plus (ii)
any and all accrued and unpaid Rent to the Exercise Date, plus (iii) $10.
Second Amended and Restated Call Option
3. Upon each utilization of the Call Option, the amount paid shall be
applied against the unpaid Acquisition Cost of the Assets. After giving effect
to the Call Option, we will update our records to reflect each such reduction in
the unpaid Acquisition Cost. Upon payment in full of the Option Purchase Price
after the exercise of the Call Option, property and title to all or a pro rata
portion of the Assets, as the case may be, shall vest in and be accepted by you
and property therein and title thereto shall be deemed to have passed on such
delivery free from all security interests, but without warranty by or recourse
to us with regard to the condition or fitness of the Assets or otherwise in any
respect. Any passing of title hereunder shall be without prejudice to the
accrued rights of the parties under the Agreement or under this letter.
4. This letter shall be binding upon, and inure to and for the benefit of,
you and us and our respective successors and assigns. You and we agree that this
letter may not be assigned in whole or in part without the prior written consent
of the other party hereto. You and we agree that any assignment of the Agreement
by any party thereto must include an assignment and assumption of this letter.
5. Each communication to be made under this letter shall be made in
writing in accordance with the notice provisions of the Agreement.
6. We hereby covenant and agree to complete and convey an acknowledgment
of receipt of a Call Option Notice in the form set out in Schedule 2 hereto to
you on the Exercise Date.
7. These options and your rights hereunder are personal to you and may not
be assigned.
8. This letter shall be governed by, and in construed in accordance with,
the laws of the State of New York. The parties agree that the last sentence of
Section 32 of the Agreement (relating to submission to jurisdiction) and the
provisions of Section 34 of the Agreement (relating to waiver of jury trial) are
incorporated by reference into this letter with the same force and effect as if
such provisions were set forth herein in full.
SIGNATURE PAGE FOLLOWS
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ARABICA FUNDING, INC.
By /s/ Xxxxxxx X. Xxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
