EXHIBIT 10.25
SECOND AMENDED AND RESTATED SUPPLEMENTAL AGREEMENT
THIS SECOND AMENDED AND RESTATED SUPPLEMENTAL AGREEMENT, dated as of June
29, 2004 (this "AGREEMENT"), is made by and between ARABICA FUNDING, INC. a
Delaware corporation (with its successors and assigns, "ARABICA"), and CARIBOU
COFFEE COMPANY, INC., a Minnesota corporation (the "COMPANY").
PRELIMINARY STATEMENT
Arabica and the Company are parties to that certain Amended and Restated
Supplemental Agreement dated as of April 25, 2001 (the "ORIGINAL Agreement"),
which Original Agreement relates to a certain Lease and License Financing and
Purchase Option Agreement, dated as of December 27, 2000, as amended by that
certain Amended and Restated Lease and License Financing and Purchase Option
Agreement, dated as of April 25, 2001 (the "ORIGINAL LEASE"), between Arabica
and the Company. Arabica and the Company have amended and restated the Original
Lease by entering into a Second Amended and Restated Lease and License Financing
and Purchase Option Agreement, dated as of the date hereof (the "AMENDED LEASE",
the terms defined therein being used herein with the same meaning, unless
otherwise indicated). In connection with entering into the Amended Lease,
Arabica and the Company have amended and restated the Original Agreement by
entering into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
SECTION 1. AGREEMENT. Arabica and the Company hereby agree that the
Company shall undertake the matters described in Sections 2, 3 and 4 below (the
"SUPPLEMENTAL AGREEMENT OBLIGATIONS") and the Company hereby agrees to perform
the Supplemental Agreement Obligations, all on the terms and conditions of this
Agreement.
SECTION 2. MAJOR MAINTENANCE. The Company agrees that, during the Term, it
shall at all times (i) determine whether any item of Equipment requires any
Major Maintenance and (ii) perform and provide all such Major Maintenance. The
Company shall keep accurate, complete and current records of all Major
Maintenance performed or provided on the Equipment and shall provide copies
thereof to Arabica promptly on demand.
SECTION 3. REQUIRED ALTERATIONS. The Company agrees that, during the Term,
it shall at all times make all Required Alterations with respect to the
Equipment. The Company shall keep accurate, complete and current records of all
Required Alterations made with respect to the Equipment and shall provide copies
thereof to Arabica promptly on demand.
SECTION 4. INSURANCE. The Company agrees that, during the Term, it shall
at all times obtain and maintain in effect property damage insurance for the
Assets in an amount not less than 100% of the Acquisition Cost of the Assets,
the coverage of such property damage insurance to include loss, vandalism,
malicious mischief, damage from fire, and normal extended coverage perils
customarily included in policies available with respect to property comparable
to the Assets. Each insurance policy so obtained and maintained shall comply
with Section 15(c) of the Amended Lease. Upon the occurrence of an Event of
Loss, the Company shall cause all
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applicable insurance proceeds to be paid to Arabica and its successors and
assigns as their interests may appear. If and to the extent that, as a
consequence of any Event of Loss, the proceeds of any insurance are
insufficient, due to negligence on the part of the Company, to keep Arabica
indemnified from any losses, damages or expenses which it might suffer under
this Agreement in connection with the Event of Loss (a "LOSS"), the Company
shall assume liability for any such Loss suffered by Arabica as a consequence
thereof. For the purpose of this Section 4, (i) "NEGLIGENCE" includes any breach
of duty, exceeding of authority, failure, mistake, error, misfeasance and
default and any Loss to Arabica caused (in whole or in part) by inaccurate or
inadequate insurance arrangements or recoveries (including by payment of
contractual deductibles), whether by act or omission; and (ii) a "Loss" includes
the Rent and the Option Purchase Price (as defined in the Call Option Letter)
that Arabica would have received if the Company had exercised the Call Option as
to the Assets on the day immediately preceding the Event of Loss (as if the Call
Option were exercisable on such date).
It is the agreement of Arabica and the Company that the aggregate amount
to be paid to Arabica pursuant to the first paragraph of this Section 4 shall
not exceed the unpaid Acquisition Cost of the Assets.
SECTION 5. PAYMENTS. (a) Arabica agrees to pay to the Company a fee of
$10 on the date hereof for the performance by the Company of the Supplemental
Agreement Obligations.
(b) Arabica also agrees to pay the Company the actual costs of performing
the Supplemental Agreement Obligations. The parties agree that Arabica shall pay
to the Company on each Rent Payment Date the amount of $100,000, which amount
Arabica and the Company agree represents an estimate of the cost to the Company
of performing the Supplemental Agreement Obligations during each Rent Period
then ended. If either party believes that such estimate exceeds or is less than
the actual cost to the Company of performing the Supplemental Agreement
Obligations, the parties shall discuss the matter and, if agreement is reached,
agree in writing to increase or decrease the amount to be paid to the Company,
such adjustment to take effect at the start of the next occurring Rent Period.
Such written agreement shall also reflect any agreed adjustment of any amounts
paid by Arabica to the Company for prior Rent Periods to ensure that the amounts
so paid reimburse the Company for the actual cost to the Company of performing
the Supplemental Agreement Obligations.
(c) The Company shall not be entitled to any payment or compensation,
other than the fee specified in paragraph (a) and the amount specified in
paragraph (b), for performing the Supplemental Agreement Obligations hereunder.
(d) In the event of the termination of the Amended Agreement prior to the
Final Rent Payment Date, the payment required to be made by Arabica pursuant to
Section 5(b) shall be prorated to such date of termination.
SECTION 6. LAW AND JURISDICTION. This Amended Supplemental Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York. The parties hereto hereby agree that the last sentence of Section 32 of
the Amended Lease (relating to submission to jurisdiction) and the provisions of
Section 34 of Amended Agreement (relating to
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waiver of jury trial) are incorporated by reference into this Amended
Supplemental Agreement with the same force and effect as if such provisions were
set forth herein in full.
SECTION 7. BENEFIT OF AGREEMENT. This Agreement shall be binding upon, and
inure to and for the benefit of, Arabica and the Company and their respective
successors and assigns. Each party agrees that this Agreement may not be
assigned in whole or in part without the prior written consent of the other
party hereto. Each party agrees that any assignment of the Amended Lease by any
party thereto must include an assignment and assumption of this Agreement.
SECTION 8. PURPOSE. This Agreement and Section 1(a)(iii) and Section 1(d)
of Schedule 6(a) to the Amended Lease have been agreed to by Arabica and the
Company only for purpose of satisfying certain Shariah requirements.
SECTION 9. NOTICES. Each communication to be made under this Agreement
shall be made in writing in accordance with the notice provisions of the Amended
Lease.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ARABICA FUNDING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. 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
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