Exhibit 10.1
TULLY’S COFFEE ASIA
PACIFIC, INC.
PROMISSORY NOTE
|
|
|
|
|
$1,120,000
|
|
December 30,
2008
|
FOR VALUE RECEIVED, the undersigned,
TULLY’S COFFEE ASIA PACIFIC, INC. (the “
Company ”), promises to pay to the order of
TULLY’S COFFEE ASIA PACIFIC PARTNERS, LP , a
Washington limited partnership (the “
Partnership ”), the principal amount of
$1,120,000 – ONE MILLION ONE-HUNDRED TWENTY THOUSAND US
DOLLARS- plus simple interest at a rate equal to fifteen percent
(15%) per annum payable upon the Maturity Date. Interest shall
be calculated on the basis of actual number of days elapsed over a
year of 365 days. Notwithstanding any other provision of this note
(the “ Note ”), the Partnership does not
intend to charge and the Company shall not be required to pay any
interest or other fees or charges in excess of the maximum
permitted by applicable law; any payments in excess of such maximum
shall be refunded to the Company or credited to reduce principal
hereunder. All payments received by the Partnership hereunder will
be applied first to costs of collection, if any, then to interest
and the balance to principal.
The following is a statement of the
rights of the Partnership under this Note and the conditions to
which this Note is subject to and to which the Partnership, by the
acceptance of this Note, agrees:
1. Maturity Date . The
principal and accrued interest on this Note shall be due and
payable on demand at the earlier of (i) two
(2) business days after Company receives or otherwise obtains
control over proceeds equal to or greater than the remaining
balance due effective upon closing of the proposed Asset Purchase
Agreement dated September 15, 2008, as amended, between
Tully’s Coffee Corporation, its wholly-owned subsidiary
Tully’s Bellaccino, LLC and Green Moutain Coffee Roasters,
Inc., (ii) June 30, 2009; or (iii)
the time at which this Note is made due and payable upon an
Event of Default (as defined below); provided ,
however that if the Event of Default is cured as permitted
in this Note, then the Maturity Date shall not thereafter be deemed
to have occurred with regard to such Event of Default under this
clause (iii) (collectively, clauses (i) –
(iii) shall be the “ Maturity Date
”).
2 Prepayment . The
Company has the right to prepay in whole or in part the principal
and accrued interest of this Note without the consent of the
Partnership. Any such prepayment shall be applied first to the
repayment of accrued fees and expenses payable to Partnership under
this Note, if any, then to the interest otherwise accrued until all
such amounts have been paid in full, and then to the repayment of
principal until all principal has been paid in full.
3 Events of Default
.
3.1 Each of the following events
shall constitute an “ Event of Default ”
of this Note: (a) the Company fails to make any
payment when due under this Note on the applicable due date and has
not made such payment within five (5) days after written
notice of such failure has been given on behalf of Partnership to
the Company; (b) a receiver is appointed for any
material part of the Company’s or its parent company’s
property, the Company or its parent company makes a
general
assignment for the benefit of creditors, the
Company or its parent company becomes insolvent, or the Company or
its parent company becomes a debtor or alleged debtor in a case
under the U.S. Bankruptcy Code or becomes the subject of any other
bankruptcy or similar proceeding for the general adjustment of its
debts or for its liquidation; (c) Company defaults in
the performance or observance of any material, term, covenant,
condition or agreement contained in this Note which such default,
if capable of being cured, is not cured by the Company within
thirty (30) calendar days after notice thereof shall have been
given by the Partnership to the Company; or (d) a
final judgment or order for the payment of money in excess of Five
Hundred Thousand
