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EXHIBIT 10.19
AGREEMENT
This Agreement is made effective as of the 21st day of January, 2000 by
and between S&D Land Holdings, Inc., a Minnesota corporation ("S&D"), Grand
Pines Resorts, Inc., a Minnesota corporation ("Grand Pines") and Famous Dave's
of America, Inc., a Minnesota corporation ("Famous").
R E C I T A L S
WHEREAS, on January 15, 1996, S&D, as Landlord, entered into a 10 year
ground lease with Famous Dave's of Minneapolis, Inc., a Minnesota corporation,
n/k/a Famous, as amended by Amendment to Lease dated December 30, 1996 and as
further amended by Second Amendment to Lease dated as of July 1, 1997 for the
Minnetonka Site ("Lease") upon which Famous constructed a Famous Dave's BBQ
restaurant; and
WHEREAS, S&D has invested in excess of $1,000,000 in the Minnetonka
Site; and
WHEREAS, Famous and FFCA Acquisition Corporation ("FFCA") entered into
that certain Commitment Letter dated as of December 2, 1999 ("Commitment
Letter") wherein FFCA committed to loan Famous (or a related entity) $3,800,000
("FFCA Loan") which loan will be secured by, among other things, a mortgage on
the Famous restaurant site located at 14601 Highway 7 in Minnetonka, Minnesota
("Minnetonka Site") all as more specifically described in the Commitment Letter;
and
WHEREAS, on March 14, 1996, Famous and Grand Pines ("Grand Pines"),
entered into that certain Trademark License Agreement ("Royalty Agreement")
wherein Grand Pines, among other things, agreed to pay a fee ("Fee") equal to
four percent (4%) of gross food sales at the Grand Pines restaurant in Hayward,
Wisconsin for the right to use certain trademarks owned by Famous; and
WHEREAS, in order to facilitate the FFCA Loan, Famous desires to
purchase from S&D and S&D desires to sell to Famous the Minnetonka site and
terminate the Lease. Further, in consideration of S&D agreeing to sell the
Minnetonka site to Famous for $750,000, Famous has agreed to amend the Royalty
Agreement to terminate Grand Pines obligation to pay the Fee.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements of the parties hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Concurrently with the closing on the FFCA Loan, S&D will convey
the Minnetonka Site to Famous, or an entity designated by Famous,
by limited warranty deed in the form attached as Exhibit A;
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2. Concurrently with the closing on the FFCA Loan, Famous will
execute a Promissory Note in the form attached hereto as Exhibit B
in favor of S&D.
3. Concurrently with the closing on the FFCA Loan, S&D and Famous
agree to terminate the Lease by executing a lease termination
agreement in the form attached hereto as Exhibit C;
4. Concurrently with the closing on the FFCA Loan, Famous and Grand
Pines will execute the amendment to the Royalty Agreement in the
form attached hereto as Exhibit D;
5. In the event that the FFCA Loan is not closed on or before
February 28, 2000, this Agreement shall be deemed null and void
and neither party shall have any further obligation to the other
as it relates to the conditions contained herein. All documents
delivered in connection with this Agreement shall immediately be
returned to the executing party.
6. FURTHER ACTS AND ASSURANCES. Each party shall, at any time and
from time to time at and after the Closing, upon request of
another party and without additional consideration, take any and
all steps reasonably necessary to execute, acknowledge and
deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acts, deeds, assignments, transfers,
conveyances and assurances as may be reasonably required to
accomplish the transactions contemplated hereunder.
7. BINDING NATURE OF AGREEMENT; ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that no party may
assign or transfer its or his rights or obligations under this
Agreement without the prior written consent of the other party
hereto.
8. CONTROLLING LAW. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement, shall be
governed by and construed, interpreted and enforced in accordance
with the laws of the State of Minnesota.
9. MODIFICATION OR WAIVER. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party which
is entitled to the benefits thereof. No waiver of any of the
provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof. No delay or
failure on the part of any party hereto to exercise any right,
power or privilege hereunder shall operate as a waiver thereof;
nor shall any waiver on the part of any party hereto of any right,
power or privilege hereunder operate as a waiver of any other
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right, power or privilege hereunder; nor shall any single or
partial exercise of any right, power, or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder.
10. HEADINGS. The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction
hereof.
11. COUNTERPARTS; FACSIMILE. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed
to be an original and all of which shall constitute the same
instrument. The parties hereto acknowledge and agree for purposes
of this Agreement and all certificates, documents and other items
to be delivered pursuant to the terms hereof, that facsimile
signatures shall be deemed acceptable to and binding upon each
party hereto.
12. ENTIRE AGREEMENT. This Agreement and the Exhibits hereto, together
with the documents and instruments delivered pursuant hereto,
constitutes the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the
subject matter hereof; provided, however, that this provision is
not intended to abrogate any other written agreement between the
parties executed with or after this Agreement or any written
agreement pertaining to another subject matter. This Agreement may
not be modified or amended other than by an agreement in writing
signed by the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
S&D LAND HOLDINGS, INC.,
a Minnesota corporation
By: /s/ David W. Anderson
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Name: David W. Anderson
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Its: Chief Executive Officer
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GRAND PINES RESORTS, INC.,
a Minnesota corporation
By: /s/ David W. Anderson
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Name: David W. Anderson
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Its: President
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FAMOUS DAVE'S OF AMERICA, INC.,
a Minnesota corporation
By: /s/ Martin J. O'Dowd
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Name: Martin J. O'Dowd
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Its: President
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