|
Exhibit
10.21(c)
FORM OF
GUARANTY AGREEMENT DATED
JULY 12, 2007
BETWEEN GUARANTOR AND
BENAROYA CAPITAL
This Guaranty Agreement (this
“Guaranty”) is made as of July 12, 2007, by Mary
Kay McCaw (“Guarantor”), in favor of BENAROYA CAPITAL
COMPANY, L.L.C., a Washington limited liability company (together
with its universal successors, participants and assigns
“Lender”).
PRELIMINARY
STATEMENTS
A. Lender previously agreed
to make a loan (the “Loan”) to Tully’s Coffee
Corporation, a Washington corporation (“Borrower”), in
the maximum principal amount of Four Million and 00/100 Dollars
($4,000,000.00).
B. Borrower and Lender have
agreed to increase the maximum principal amount of the Loan to
$10,000,000.00 and to extend the maturity date of the Loan.
Guarantor acknowledges that Lender would not increase the amount or
extend the maturity date of the Loan without Guarantor’s
execution and delivery to Lender of this Guaranty.
Guarantor’s obligations hereunder are limited as set forth
herein.
C. The Loan is evidenced by
that certain Secured Promissory Note dated April 26, 2007, as
amended by that certain Amendment to Secured Promissory Note and
Security Agreement of even date herewith, executed by Borrower and
payable to the order of Lender in the principal face amount of up
to Ten Million and 00/100 Dollars ($10,000,000.00) (such Promissory
Note, as it may hereafter be renewed, extended, supplemented,
increased or modified and in effect from time to time, and all
other notes given in substitution therefor, or in modification,
renewal, or extension thereof, in whole or in part, is herein
called the “Note”).
D. In connection with the
Loan, Borrower previously executed that certain Security Agreement
dated April 26, 2007 (as amended, the “Security
Agreement”). The Note, this Guaranty and the Security
Agreement, and all other documents now or hereafter securing,
guaranteeing or executed in connection with the Loan, are, as the
same have been or may be amended, restated, modified or
supplemented from time to time, herein sometimes called
individually a “Loan Document” and together the
“Loan Documents”.
STATEMENT OF
AGREEMENTS
For good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, and as a material inducement to Lender to extend
credit to Borrower, subject to the terms and conditions of
Section 2, Guarantor hereby guarantees to Lender the prompt
and full payment and performance of the indebtedness
and obligations described below in this
Guaranty to the extent that such indebtedness and obligations
exceed Five Million Dollars ($5,000,000) (said amounts in excess of
Five Million Dollars ($5,000,000) being referred to collectively as
the “Guaranteed Obligations”), this Guaranty being upon
the following terms and conditions:
1. Guaranty of
Payment . Guarantor hereby unconditionally and
irrevocably guarantees to Lender the payment when due and before
the occurrence of an Event of Default (as defined in
clause (b) of Section 3), whether by lapse of time, by
acceleration of maturity, or otherwise, of all principal, interest
(including, but not limited to, interest accruing after the
commencement of any bankruptcy or insolvency proceeding by or
against Borrower, whether or not allowed in such proceeding), fees,
late charges, prepayment fees, costs, expenses, and other sums of
money now or hereafter due and owing, or which Borrower is
obligated to pay, pursuant to (a) the terms of the Note or any
other Loan Documents, including any indemnifications contained in
the Loan Documents, now or hereafter existing, and (b) all
renewals, extensions, refinancings, modifications, supplements or
amendments of such indebtedness, or any of the Loan Documents, or
any part thereof (the indebtedness described in clauses
(a) and (b) above in this Section 1 is herein
collectively called the “Indebtedness”). This Guaranty
covers the Indebtedness, whether presently outstanding or arising
subsequent to the date hereof, including all amounts advanced by
Lender in stages or installments. The guaranty of Guarantor as set
forth in this Section 1 is a continuing guaranty of payment
and not a guaranty of collection. Lender may loan money and provide
business and financial accommodations to or for the benefit of
Borrower in excess of the Indebtedness without affecting
Guarantor’s obligations to Lender under this
Guaranty.
2. Limitation of
Guarantor’s Liability . Notwithstanding anything
to the contrary contained herein, the liability of Guarantor under
this Guaranty shall not exceed the sum of:
(a) the lesser of (i) 60% of
all Guaranteed Obligations; and (ii) Three Million Dollars
($3,000,000), which amount shall be specified in the notice from
Lender to Guarantor demanding payment hereunder; plus
(b) all interest accruing on
the amount specified in the notice provided pursuant to Section
2(a) from the date of such notice until Guarantor satisfies all of
its obligations under this Guaranty; plus
(c) all amounts owing
pursuant to Section 11.
3. Primary Liability of
Guarantor .
(a) This Guaranty is an
absolute, irrevocable and unconditional guaranty of payment and
performance. Guarantor shall be liable for the payment and
performance of the Guaranteed Obligations as a primary obligor and
Lender shall not be obligated to seek contribution from any other
guarantor prior to enforcing its rights under this Guaranty. This
Guaranty shall be effective as a waiver of, and Guarantor hereby
expressly waives, any and all rights to which Guarantor may
otherwise have been entitled under any suretyship laws in effect
from time to time, including any right or privilege, whether
existing under statute, at law or in equity, to require Lender to
take prior recourse or proceedings against any collateral, security
or other party whatsoever.
(b) As used herein, the term
“Event of Default” means the occurrence of one or more
of the following events, individually or collectively:
(i) default by Borrower in payment or performance of the
Guaranteed Obligations, or any part thereof, when such indebtedness
or performance becomes due, either by its terms or as the result of
the exercise of any power to accelerate; (ii) the failure of
Guarantor to perform completely and satisfactorily the covenants,
terms and conditions of any of the Guaranteed Obligations;
(iii) the dissolution or insolvency of Guarantor, or the
appointment of a conservator for Guarantor, and such Guarantor is
not replaced
2
by another Guarantor
satisfactory to Lender within thirty (30) days after the
occurrence of such event; (iv) the inability of Guarantor to
pay debts as they mature; (v) an assignment by Guarantor for
the benefit of creditors; (vi) the institution of any
proceeding by or against Guarantor in bankruptcy or for a
reorganization or an arrangement with creditors, or for the
appointment of a receiver, trustee or custodian for any of them or
for any of their respective properties; (vii) the
determination by Lender in good faith that a material adverse
change has occurred in the financial condition of Guarantor;
(viii) the issuance of a writ or order of attachment, levy or
garnishment is issued against Guarantor; (ix) the falsity in
any material respect of, or any material omission in, any
representation made to Lender by Guarantor; or (x) any
transfer of substantially all of the assets of Guarantor, without
the Lender’s prior consent.
(c) Subject to the
limitations set forth in Section 2, upon the occurrence of any
Event of Default, the Guaranteed Obligations, for purposes of this
Guaranty, shall be deemed immediately due and payable at the
election of Lender, and Guarantor shall, on demand and without
presentment, protest, notice of protest, further notice of
nonpayment or of dishonor, default or nonperformance, or notice of
acceleration or of intent to accelerate, or any other notice
whatsoever, without any notice having been given to Guarantor prior
to such demand of the acceptance by Lender of this Guaranty, and
without any notice having been given to Guarantor prior to such
demand of the creating or incurring of such indebtedness, all such
notices being hereby waived by Guarantor, pay the amount due to
Lender, and pay all damages and all costs and expenses that may
arise in consequence of such Event of Default (including all
reasonable attorneys’ fees and expenses, investigation costs,
court costs, and any and all other reasonable costs and expenses
incurred by Lender in connection with the collection and
enforcement of the Note or any other Loan Document), whether or not
suit is filed thereon, or whether at maturity or by acceleration,
or whether before or after maturity, or whether in connection with
bankruptcy, insolvency or appeal. It shall not be necessary for
Lender, in order to enforce such payment by Guarantor, first to
institute judicial or non-judicial foreclosure or pursue or exhaust
any rights or remedies against Borrower or others liable on such
indebtedness, or to enforce any rights against any security that
shall ever have been given to secure such indebtedness, or to join
Borrower or any others liable for the payment of the Guaranteed
Obligations or any part thereof in any action or proceeding to
enforce this Guaranty, or to resort to any other means of obtaining
payment or performance of the Guaranteed Obligations; provided,
however, that nothing herein contained shall prevent Lender from
foreclosing any security agreement (a “Security
Agreement”) now or hereafter securing all or any part of the
Guaranteed Obligations, or from exercising any other rights or
remedies under the Loan Documents, and if such foreclosure or other
right or remedy is availed of, only the net proceeds therefrom,
after deduction of all charges and expenses of every kind and
nature whatsoever, shall be applied in reduction of the amount due
on the Note, and Lender shall not be required to institute or
prosecute proceedings to recover any deficiency as a condition of
payment hereunder or enforcement hereof. At any sale of any
property encumbered by a Security Agreement or other collateral
given for the Indebtedness or any part thereof, whether by
foreclosure or otherwise, Lender may at its discretion purchase all
or any part of any property encumbered by a Security Agreement or
collateral so sold or offered for sale for its own account and may,
in payment of the amount bid therefor, deduct such amount from the
balance due it pursuant to the terms of the Note and the other Loan
Documents. Collection action may be taken or demand
3
may be made against Borrower
or against all parties who have signed this Guaranty or any other
guaranty covering all or any part of the Guaranteed Obligations, or
against any one or more of them, separately or together, without
impairing the rights of Lender against any other party
hereto.
4. Certain Agreements
and Waivers by Guarantor .
(a) Guarantor hereby agrees
that neither Lender’s rights or remedies nor
Guarantor’s obligations under the terms of this Guaranty
shall be released, diminished, impaired, reduced or affected by any
one or more of the following events, actions, facts, or
circumstances, and the liability of Guarantor under this Guaranty
shall be absolute and unconditional irrespective of: (i) any
limitation of liability or recourse in any other Loan Document or
arising under any law; (ii) any claim or defense that this
Guaranty was made without consideration or is not supported by
adequate consideration; (iii) the taking or accepting of any
other security or guaranty for, or right of recourse with respect
to, any or all of the Guaranteed Obligations; (iv) any
homestead exemption or any other exemption under applicable law;
(v) any release, surrender, abandonment, exchange, alteration,
sale or other disposition, subordination, deterioration, waste,
failure to protect or preserve, impairment, or loss of, or any
failure to create or perfect any lien or security interest with
respect to, or any other dealings with, any collateral or security
at any time existing or purported, believed or expected to exist in
connection with any or all of the Guaranteed Obligations, including
any impairment of Guarantor’s recourse against any person or
entity or collateral; (vi) whether express or by operation of
law, any partial release of the liability of Guarantor hereunder,
or if one or more other guaranties are now or hereafter obtained by
Lender covering all or any part of the Guaranteed Obligations, any
complete or partial release of any one or more of such guarantors
under any such other guaranty, or any complete or partial release
of Borrower or any other party liable, directly or indirectly, for
the payment or performance of any or all of the Guaranteed
Obligations; (vii) the death of Borrower or the appointment of
a conservator or guardian for Borrower; (viii) the insolvency,
bankruptcy, dissolution, liquidation, termination, receivership,
reorganization, merger, consolidation, change of form, structure or
ownership, sale of all assets, or lack of corporate, partnership or
other power of Borrower or any other party at any time liable for
the payment of any or all of the Guaranteed Obligations;
(ix) either with or without notice to or consent of Guarantor:
any renewal, extension, modification, supplement, subordination or
rearrangement of the terms of any or all of the Guaranteed
Obligations and/or any of the Loan Documents, including material
alterations of the terms of payment (including changes in maturity
date(s) and interest rate(s)) or performance or any other terms
thereof, or any waiver, termination, or release of, or consent to
depart from, any of the Loan Documents or any other guaranty of any
or all of the Guaranteed Obligations, or any adjustment,
indulgence, forbearance, or compromise that may be granted from
time to time by Lender to Borrower, Guarantor, and/or any other
person or entity at any time liable for the payment or performance
of any or all of the Guaranteed Obligations; (x) any neglect,
lack of diligence, delay, omission, failure, or refusal of Lender
to take or prosecute (or in taking or prosecuting) any action for
the collection or enforcement of any of the Guaranteed Obligations,
or to foreclose or take or prosecute any action to foreclose (or in
foreclosing or taking or prosecuting any action to foreclose) upon
any security therefor, or to exercise (or in exercising)
4
any other right or power with
respect to any security therefor, or to take or prosecute (or in
taking or prosecuting) any action in connection with any Loan
Document, or any failure to sell or otherwise dispose of in a
commercially reasonable manner any collateral securing any or all
of the Guaranteed Obligations; (xi) any failure of Lender to
notify Guarantor of any creation, renewal, extension,
rearrangement, modification, supplement, subordination, or
assignment of the Guaranteed Obligations or any part thereof, or of
any Loan Document, or of any release of or change in any security,
or of any other action taken or refrained from being taken by
Lender against Borrower or any security or other recourse, or of
any new agreement between Lender and Borrower, it being understood
that Lender shall not be required to give Guarantor any notice of
any kind under any circumstances with respect to or in connection
with the Guaranteed Obligations, any and all rights to notice
Guarantor may have otherwise had being hereby waived by Guarantor,
and the Guarantor shall be responsible for obtaining for itself
information regarding the Borrower, including, any changes in the
business or financial condition of the Borrower, and the Guarantor
acknowledges and agrees that the Lender shall have no duty to
notify the Guarantor of any information which the Lender may have
concerning the Borrower; (xii) whether for any reason Lender
is required to refund any payment by Borrower to any other party
liable for the payment or performance of any or all of the
Guaranteed Obligations, or to pay the amount thereof to someone
else; (xiii) the making of advances by Lender to protect its
interest in any property encumbered by a Security Agreement, to
preserve the value of any property encumbered by a Security
Agreement or to facilitate performance of any term or covenant
contained in any of the Loan Documents; (xiv) the existence of
any claim, counterclaim, set-off or other right that Guarantor may
at any time have against Borrower, Lender, or any other person or
entity, whether or not arising in connection with this Guaranty,
the Note or any other Loan Document; (xv) the unenforceability
of all or any part of the Guaranteed Obligations against Borrower,
whether because the Guaranteed Obligations exceed the amount
permitted by law or violate any usury law, or because the act of
creating the Guaranteed Obligations, or any part thereof, is ultra
vires, or because the officers or persons creating the Guaranteed
Obligations acted outside the scope of their authority, or because
of a lack of validity or enforceability of or defect or deficiency
in any of the Loan Documents, or because Borrower has any valid
defense, claim or offset with respect thereto, or because
Borrower’s obligation ceases to exist by operation of law, or
because of any other reason or circumstance, it being agreed that
Guarantor shall remain liable on this Guaranty regardless of
whether Borrower or any other person or entity be found not liable
for the Guaranteed Obligations, or any part thereof, for any reason
(and regardless of any joinder of Borrower or any other party in
any action to obtain payment or performance of any or all of the
Guaranteed Obligations); (xvi) any order, ruling or plan of
reorganization emanating from proceedings under Title 11 of the
United States Code with respect to Borrower or any other person or
entity, including any extension, reduction, composition, or other
alteration of the Guaranteed Obligations, whether or not consented
to by Lender; or (xvii) any other condition, event, omission,
action or inaction that would in the absence of this
Section 4(a) result in the release or discharge of the
Guarantor from the performance or observance of any obligation,
covenant or agreement contained in this Guaranty or any other
agreement.
5
(b) In the event any payment
by Borrower or any other person or entity to Lender is held to
constitute a preference, fraudulent transfer or other voidable
payment under any bankruptcy, insolvency or similar law, or if for
any other reason Lender is required to refund such payment or pay
the amount thereof to any other party, such payment by Borrower or
any other party to Lender shall not constitute a release of
Guarantor from any liability hereunder, and this Guaranty shall
continue to be effective or shall be reinstated (notwithstanding
any prior release, surrender or discharge by Lender of this
Guaranty or of Guarantor), as the case may be, with respect to, and
this Guaranty shall apply to, any and all amounts so refunded by
Lender or paid by Lender to another person or entity (which amounts
shall constitute part of the Guaranteed Obligations), and any
interest paid by Lender and any reasonable attorneys’ fees,
costs and expenses paid or incurred by Lender in connection with
any such event. It is the intent of Guarantor and Lender that the
obligations and liabilities of Guarantor hereunder are absolute and
unconditional under any and all circumstances and that, subject to
the limitations set forth in Section 2, until the Guaranteed
Obligations are fully and finally paid, and not subject to refund
or disgorgement, the obligations and liabilities of Guarantor
hereunder shall not be discharged or released, in whole or in part,
by any act or occurrence that might, but for the provisions of this
Guaranty, be deemed a legal or equitable discharge or release of a
guarantor.
(c) If acceleration of the
time for payment of any amount payable by Borrower under the Note
or any other Loan Document is stayed or delayed by any law or
tribunal, all such amounts shall no
|
