FIRSTAMENDMENT TO AGREEMENT BETWEEN TULLYS COFFEE AND GUARANTORS RE KENT CENTRAL FINANCING
Exhibit 10.2
FIRST AMENDMENT
TO AGREEMENT BETWEEN TULLYS COFFEE AND GUARANTORS
RE KENT CENTRAL FINANCING
THIS FIRST AMENDMENT is entered into as of March 7, 2003, between TULLYS COFFEE CORPORATION, a Washington corporation (the Company) and MARC EVANGER (Evanger); RON NEUBAUER (Neubauer); KEVIN FORTUN (Fortun); TOM OKEEFE (OKeefe); RICHARD PADDEN (Padden); GEORGE HUBMAN (Hubman) and LARRY HOOD (Hood) (individually, a Guarantor, and collectively, the Guarantors).
RECITALS
A. The Company and the Guarantors are parties to that certain Agreement Between Tullys Coffee Corporation and Guarantors re Kent Central Financing dated October 29, 2002 (the Agreement), pursuant to which the Company and the Guarantors have agreed to certain terms and conditions related to certain Guaranty Agreements (each a Guaranty and, collectively, the Guaranties) that each of the Guarantors has delivered to Kent Central, LLC (Lender) in connection with a loan facility (the Loan Facility) entered into between Lender and the Company.
B. Subject to the terms and conditions contained in this First Amendment, the Company and the Guarantors now wish to amend certain of the terms and conditions contained in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and premises herein contained, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined shall have the meaning given in the Agreement.
2. Amendments.
2.1 New Section 5. The Agreement is hereby amended to add a new Section 5 of the Agreement reading as follows:
5. Covenant Not to Enter into Any Agreement Involving a Material Change to the License or Supply Agreements with TCJ or UCC. The Company shall not, without the prior written consent of all of the Guarantors, enter into any agreement or arrangement that involves a Material Change (as defined below) with respect to the terms and conditions contained in any of the existing License and Supply Agreements (collectively, the License and Supply Agreements) between the Company and (i) FOODX Globe Co. (TCJ), (ii) UCC Ueshima Coffee Co. Ltd. (UCC), or (iii) any of TCJ or UCCs subsidiaries or affiliates.
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As used herein, the term Material Change shall mean a permanent or temporary amendment, modification or change to the terms and conditions of one or more of the License and Supply Agreements which changes any of the material terms and conditions of any of the License and Supply Agreements in exchange for (x) a cash payment not currently provided for in the License and Supply Agreements, or (y) an acceleration of any payments of royalties, fees or other sums due from either UCC or TCJ to the Company under any of the License and Supply Agreements. The term Material Change shall not apply to any modification or change to the terms and conditions of one or more of the License and Supply Agreements which occur in the ordinary course of business.
2.2 Renumbering. The existing Section 5 of the Agreement entitled Grant of a Security Interest shall be renumbered to become Section 6. All Sections thereafter shall be renumbered sequentially. All internal cross-referencing between Sections shall be renumbered accordingly.
3. No Further Amendment. Except as expressly modified by this Amendment, the Agreement shall remain unmodified and in full force and effect and the parties hereby ratify their respective obligations thereunder.
4. Miscellaneous.
4.1 Entire Agreement. This Amendment comprises the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or commitments.
4.2 Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same Amendment.
4.3 Governing Law. This Amendment and the other agreements provided for herein and the rights and obligations of the parties hereto and thereto shall be construed and interpreted in accordance with the laws of the State of Washington.
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EXECUTED as of the day and year first written above.
| GUARANTORS: |
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| /s/ Marc Evanger |
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| Marc Evanger | |||||||||
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| /s/ Ron Neubauer |
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| Ron Neubauer | |||||||||
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| /s/ Richard Padden |
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| Richard Padden | |||||||||
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| /s/ Larry Hood |
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| Larry Hood | |||||||||
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| /s/ George Hubman |
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| George Hubman | |||||||||
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| /s/ Tom OKeefe |
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| Tom OKeefe | |||||||||
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| /s/ Kevin Fortun |
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| Kevin Fortun | |||||||||
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| TULLYS COFFEE CORPORATION: | |||||||||
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| /s/ Anthony J. Gioia |
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| Anthony J. Gioia, Its President and CEO | |||||||||
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