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Exhibit
10.24
AGREEMENT BETWEEN
TULLY’S COFFEE CORPORATION AND GUARANTOR
RE BENAROYA CAPITAL
FINANCING
THIS AGREEMENT is entered
into this 12th day of July, 2007 (the “Effective
Date”), among TULLY’S COFFEE CORPORATION, a Washington
corporation (the “Company”), and MARY KAY MCCAW (the
“Guarantor”), and, for purposes of Sections 6.1 and 7
only, TOM T. O’KEEFE (“Tom
O’Keefe”).
RECITALS
A. On April 26, 2007,
the Company entered into a loan facility (as amended, the
“Loan Facility”) with Benaroya Capital, LLC
(“Lender”). As of the Effective Date, the Loan Facility
is being amended by agreement of the Company and the
Lender.
B. In connection with the
Loan Facility, the Lender has required the Guarantor to execute and
deliver that certain Guaranty Agreement of even date herewith (the
“Guaranty”) pursuant to which the Guarantor guarantees
the payment of a certain portion of the Company’s obligations
pursuant to the Loan Facility.
C. The parties desire to
enter into this Agreement to evidence certain terms and conditions
they have agreed upon in connection with the Guaranty.
AGREEMENT
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
premises herein contained, the parties hereto agree as
follows:
1. Guarantor
Compensation . In consideration of the Guarantor’s
execution and delivery of the Guaranty, the Company shall provide
to the Guarantor the compensation described in the attached Exhibit
A.
2. Indemnification;
Attorneys Fees . The Company hereby agrees to indemnify,
defend and hold harmless the Guarantor from and against any and all
claims, liabilities, payments, costs and expenses incurred by the
Guarantor arising out of or related to the Guaranty. Without
limiting the foregoing, the Company shall indemnify the Guarantor
from and against any amounts paid by Guarantor to Lender pursuant
to the Guaranty and the Company shall reimburse Guarantor, on
demand, for all attorneys fees and other costs incurred in
connection with the Guaranty or this Agreement.
3. Covenant Not to
Incur Additional Secured Debt Without Guarantor Approval.
The Company hereby agrees that, without the prior written consent
of the Guarantor, the Company shall not enter into any agreement,
undertaking or arrangement of any kind to grant a security interest
in any assets of the Company other than the security interest
granted in connection with the Loan Facility or to the Guarantor
under this Agreement. Notwithstanding the foregoing, the Company
may amend, renew, cancel, reduce or otherwise modify the agreements
with Northrim Funding (but not increase the amounts that the
Company
is permitted to borrow thereunder),
pursuant to which the Company has granted a security interest to
Northrim, and may enter into franchising and licensing agreements
which may grant the franchisee or licensee certain actual or
conditional rights related to trademarks of the Company.
4. Covenant to Repay
Loan .
4.1 Equity
Investment . If, after the date of this Agreement, the
Company completes a financing transaction involving the issuance of
debt, equity or convertible securities in the Company, including
without limitation any security exercisable (with or without
additional consideration) for, or convertible (with or without
additional consideration) into capital stock of the Company, then
the Company shall pay off the outstanding balance of the Loan and,
at the Guarantor’s re
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