Exhibit 10.30(b)
AMENDMENT NO. 2
TO
ASSET PURCHASE
AGREEMENT
This Amendment No. 2 (the
“ Amendment ”), dated as of February 6,
2009 amends that certain Asset Purchase Agreement dated as of
September 15, 2008, as amended by Amendment No. 1 thereto
dated as of November 12, 2008 (the “ Agreement
”) by and among Green Mountain Coffee Roasters, Inc., a
Delaware corporation (the “ Buyer ”),
Tully’s Coffee Corporation, a Washington corporation (the
“ Seller Parent ”) and Tully’s Bellaccino,
LLC, a Washington limited liability company (the “ Seller
Subsidiary ” and together with the Seller Parent, “
Seller ”). Capitalized terms used and not otherwise
defined in this Amendment are used herein as defined in the
Agreement.
WHEREAS, the parties to this
Amendment desire to amend the Agreement as provided
herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby as
follows:
1. Amendments to Schedule 2.1(c)
and 2.2(j) of the Disclosure Schedules to the Agreement . The
Disclosure Schedules are hereby amended by deleting the text quoted
below in its entirety from Section 2.1(c) of the Disclosure
Schedules and adding this deleted text to Section 2.2(j) of
the Disclosure Schedules. For the avoidance of doubt, each of the
agreements listed below shall be considered an Excluded Asset under
the Agreement.
“Supply Agreement dated as of
October 15, 2007 by and between Seller Parent and Good Earth
Teas, Inc.”
“Truck Lease and Service
Agreement dated as of January 13, 1999 by and between
International Leasing Co., Inc. and Seller Parent”
2. Amendment to
Section 2.4 . Section 2.4 of the Agreement shall be
amended by adding in a new subsection (c) which shall reads as
follows:
(c) Solely for purposes of preparing
the Estimated Asset Adjustment Statement, the Preliminary Closing
Statement and the Final Closing Statement the GL-14M Corner Seal
Machine, serial number 2816 which is the subject of the Equipment
Lease Agreement dated November 28, 2002 between Fres-Co System
USA, Inc. and Tully’s Coffee Corporation shall not be
considered Net Equipment.
3. Amendment to
Section 6.1(r) . Section 6.1(r) of the Agreement is
hereby amended and restated in its entirety as follows:
“(r) Amendment and
Termination of Certain Contracts . The Seller will have
executed amendments reasonably satisfactory in form and substance
to Buyer with the applicable counter party to Seller in each of the
(i) Amended and Restated Brokerage Agreement dated as of
August 1, 2005 between Impact Sales, Inc., and
(ii) Consulting Agreement dated as of June 18, 2008 by
and between Tully’s and PinnPointe Consulting Group. The
Supply and Distributor Agreement dated as of October 1, 2003
between Food Services of America, Inc. and Seller will have been
terminated in writing in a manner reasonably satisfactory to the
Buyer.
4. Amendment of
Section 8.1(b)(ii) . Section 8.1(b)(ii) is hereby
amended and restated in its entirety as follows:
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“(ii)
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if the Closing
does not occur on or prior to March 27, 2009 (the
“Outside Date”), unless the failure of the Closing to
occur by such date is due to the failure of the Party seeking to
terminate the Agreement to perform or observe in all material
respects the covenants and agreements of such Party set forth
herein.”
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5. Except as amended hereby, the
Agreement is hereby ratified and confirmed and shall remain in full
force and effect.
6. This Amendment may be executed in
several counterparts, each of which shall be deemed an original and
all such counterparts shall constitute one and the same agreement.
Facsimile copies of sign
