exv10w1






Exhibit 10.1




FIRST AMENDMENT TO LEASE AND LICENSE FINANCING

AND PURCHASE OPTION AGREEMENT




     THIS FIRST AMENDMENT TO LEASE AND LICENSE FINANCING AND PURCHASE OPTION AGREEMENT (this
“Amendment”), dated as of November 30, 2010, 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 Lease and License Financing and Purchase Option
Agreement dated as of February 19, 2010 (as amended and 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 Arabica is
willing to effect such amendments 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. Subject to the satisfaction of each of the conditions
set forth herein, the Master Lease is hereby amended as follows:




     A. Definitions. The definitions of “Change of Control” and “Final Rent Payment
Date” contained in Section 1 of the Master Lease are hereby amended and restated in their
entirety as follows:




     “Change in Control”: for any reason:




     (a) (i) Holdings shall own of record less than 20% of the issued and outstanding
Capital Stock or voting power of the Company; or (ii) the Persons who own all of the
Capital Stock of Holdings on the date hereof having the ordinary voting power to elect
the Board of Directors of Holdings shall cease to own at least 51% of such Capital
Stock;




     (b) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”)),
excluding the holders of Capital Stock of Holdings and the Company, respectively, on
the Closing Date, shall become, or obtain rights (whether by means or warrants, options
or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act), directly or indirectly, of more than 35% of the
outstanding Capital Stock or voting power of Holdings or the Company;



 









 






     (c) during any period of 12 consecutive months, commencing after the date of this
Agreement, Continuing Directors shall cease for any reason other than death or
disability to constitute a majority of the directors of Holdings then in office;




     (d) the Company shall cease to own of record and beneficially 100% of the issued
and outstanding Capital Stock and voting power in each Person that is as of the date
hereof, or at any time after the date hereof becomes, a Wholly-Owned Subsidiary of the
Company (unless otherwise permitted under the Lease/Purchase Documents);




     (e) GSS Holdings, Inc. (“GSS”) or a corporate service company (or an
affiliate thereof) or a charitable trust (any such corporate service company, affiliate
or charitable trust to be reasonably acceptable to Arabica) shall cease to own of
record and beneficially 100% of the issued and outstanding Capital Stock and voting
power of Arabica on a fully diluted basis, or any member of the Board of Directors of
Arabica shall cease to be an Independent Director; or




     (f) any Specified Change of Control shall occur.




     “Final Rent Payment Date”: December 31, 2011.



     B. No Further Amendments. Except as expressly amended herein, the text of
the Master Lease and all other Lease/Purchase Documents shall remain unchanged and in full
force and effect.


II. REFERENCES IN THE 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 such Company Security Documents are hereby ratified and
affirmed.



III. REPRESENTATIONS, WARRANTIES AND COVENANTS. As a condition to the effectiveness
of this Amendment (and the consent set forth in Section IV), the Company hereby represents
and warrants to, and covenants and agrees with Arabica that:




     A. The execution and delivery of this Amendment has been duly authorized by all
requisite action on the part of the Company and does not contravene, conflict with, or constitute a
default under, any provision of: (i) the Company’s articles of incorporation or bylaws, (ii) any
law, judgment, decree or order applicable to the Company or to any other member of the Restricted
Group, or (iii) any provision of any material agreement or instrument binding upon any member of
the Restricted Group or upon any of the respective property of a member of the Restricted Group.
The execution and delivery of this Amendment by the Company do not and will not cause any lien to
arise under any provision of any material agreement or instrument binding upon any member of the
Restricted Group or upon any of the respective property of a member of the Restricted Group.



 - 2 - 









 





     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, 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. No Default or Event of Default has occurred and is continuing under the
Master Lease or any other Lease/Purchase Document.



     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 in connection with or as a condition to
the execution, delivery or performance of this Amendment.



     D. This Amendment constitutes the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its 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.



     E. By the Company’s signature hereto, and Holdings’ and its Subsidiaries’ signatures to the
Consent and Acknowledgement attached hereto, each such party hereby acknowledges and confirms that
(i) it does not have any grounds, and hereby agrees not to challenge (or to allege or to pursue any
matter, cause or claim arising under or with respect to), in any case based upon acts or omissions
of Arabica, the Administrative Agent or the Lenders (each as defined in that certain Credit
Agreement dated as of February 19, 2010 by and among Arabica, the financial institutions from time
to time party thereto as lenders, and Wells Fargo Bank, N.A., as administrative agent (the
“Administrative Agent”)), the effectiveness, genuineness, validity, collectibility or
enforceability of the Lease/Purchase Documents, the Obligations, the Grantor Obligations (as
defined in the Company Guarantee and Security Agreement, respectively), the Liens securing the
Obligations and Grantor Obligations, or any of the terms or conditions of any Lease/Purchase
Document, and (ii) it does not possess (and hereby forever waives, remises, releases, discharges
and holds harmless Arabica, each Lender, the Administrative Agent, and their respective affiliates,
stockholders, directors, officers, employees, attorneys, agents and representatives and each of
their respective heirs, executors, administrators, successors and assigns (collectively, the
“Indemnified Parties”) from and against, and agrees not to allege or pursue) any action,
cause of action, suit, debt, claim, counterclaim, cross-claim, demand, defense, offset, opposition,
demand and other right of action whatsoever, whether in law, equity or otherwise (which it, all
those claiming by, through or under it, or its successors or assigns, have or may have) against the
Indemnified Parties, or any of them, by reason of, any matter, cause or thing whatsoever, with
respect to events or omissions occurring or arising on or prior to the date hereof and relating to
the Master Lease or any of the other Lease/Purchase Documents (including, without limitation, with
respect to the payment, performance, validity or enforceability of the Obligations, the Grantor
Obligations, the Liens securing the Obligations and Grantor Obligations, or any or all of the terms
or conditions of any Lease/Purchase Document) or any transaction relating thereto.







 - 3 - 









 







IV. CONSENT TO PARTIAL RELEASE.




     Pursuant to the Company Guarantee and Security Agreement, Holdings granted a security
interest in and a pledge of, and delivered stock certificate no. CC183 for, 11,672,245 shares
of the common stock of the Company, representing a 58.2% ownership interest of all issued and
outstanding shares of the Company therein. The Company and Holdings are requesting that
Arabica consent (a) to the release of up to 7,000,000 of such shares of common stock from such
security interest and pledge, and (b) to the sale of up to 7,000,000 of such released shares
by Holdings; provided such sale does not result in any Change in Control (as amended
herein) under the Credit Agreement. Arabica hereby consents to such release and such sale of
up to 7,000,000 shares of common stock of the Company owned by Holdings; provided (i) a stock
certificate evidencing the remaining shares of common stock of the Company not so released
(which shall be no less than 4,672,245 shares of common stock), together with a blank stock
power therefor in form and substance satisfactory to the Administrative Agent (the
“Replacement Stock Certificate”) is delivered to the Administrative Agent in a manner
to enable the Administrative Agent to remain perfected at all times therein pursuant to the
Company Guarantee and Security Agreement and in any event within three Business Days after
delivery by the Administrative Agent in escrow of stock certificate no. CC183, (ii) all of the
conditions for this Amendment are met, and (iii) no Supplement shall be requested by the
Company, unless and until such Replacement Stock Certificate is delivered to the
Administrative Agent.


V. 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.



     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.]




 - 4 - 









 





     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/ Bernard J. Angelo
 	 
	 	 	Name:  	Bernard J. Angelo 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	CARIBOU COFFEE COMPANY, INC.

 	 
	 	By:  	/s/ Tim Hennessy
 	 
	 	 	Name:  	Tim Hennessy 	 
	 	 	Title:  	CFO 	 
	 



First Amendment to Lease and License Financing and Purchase Option Agreement








 









 








CONSENT AND ACKNOWLEDGEMENT





     To the extent necessary, if any, each of the undersigned hereby consents to the execution and
delivery of the foregoing First Amendment to Lease and License Financing and Purchase Option
Agreement (the “Amendment”) and to all of the transactions contemplated thereby and
confirms and agrees with the provisions thereof, including without limitation all provisions
applicable to any of the undersigned.



     Executed as a sealed instrument as of the date of such Amendment.



	 	 	 	 	 
	 	CARIBOU HOLDING COMPANY LIMITED

 	 
	 	By:  	/s/
E. Stockton Croft
 	 
	 	 	Name:  	E. Stockton Croft	 
	 	 	Title:  	Vice President 	 
	 
	 	CARIBOU COFFEE COMPANY, INC. 

 	 
	 	By:  	/s/ Tim Hennessy	 
	 	 	Name:  	Tim Hennessy	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	CARIBOU ON PIEDMONT, INC.

 	 
	 	By:  	/s/ Tim Hennessy	 
	 	 	Name:  	Tim Hennessy	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	CARIBOU ACQUISITION COMPANY

 	 
	 	By:  	/s/ Tim Hennessy	 
	 	 	Name:  	Tim Hennessy	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	CARIBOU COFFEE DEVELOPMENT COMPANY,
 INC.

 	 
	 	By:  	/s/ Tim Hennessy	 
	 	 	Name:  	Tim Hennessy	 
	 	 	Title:  	Chief Financial Officer