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EXHIBIT 10.29
TERM NOTE
$12,000,000 Dated as of July 7, 1999
FOR VALUE RECEIVED, XXXXXXXX COFFEE, INC. and all of its direct and
indirect Subsidiaries (collectively, the "Borrowers"), hereby jointly and
severally promise to pay to the order of BANKBOSTON, N.A. (hereinafter, together
with its successors and assigns, called the "Lender"), at the office of the
Lender pursuant to the Credit Agreement (as amended or extended from time to
time, the "Credit Agreement"), dated as of June 30, 1999, among the Borrowers
and the Lender, the principal sum of $12,000,000, together with interest on the
principal balance thereof from time to time outstanding from the date hereof
until payment in full, without set-off, deduction or counterclaim, on the dates
and in such amounts as specified in the Credit Agreement, and at the final
maturity of this Note, whether by payment or prepayment, acceleration or
otherwise. Interest accruing on the unpaid balance hereof from time to time
shall be calculated on the basis of a 360-day year for the actual number of days
elapsed.
Overdue principal (whether at maturity, by reason of acceleration or
otherwise) and, to the extent permitted by applicable law, overdue interest and
fees or any other amounts payable under the Credit Agreement due to the
Borrowers' failure to pay the same in full shall bear interest from and
including the due date thereof until paid, at a rate or rates per annum
determined in accordance with the Credit Agreement, which interest shall be
compounded daily and payable on demand.
All payments under this Note shall be made to the Lender, at the head
office of the Lender, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (or at
such other place as the Lender may designate from time to time in writing) in
lawful money of the United States of America in immediately available funds.
The outstanding principal amount of this Note and accrued and unpaid
interest thereon shall be due and payable as provided in the Credit Agreement.
The Borrowers have the right in certain circumstances and the obligation in
certain other circumstances to prepay this Note in whole or in part on the terms
and conditions provided in the Credit Agreement.
This Note is the "Term Note" referred to in the Credit Agreement and
evidences a Term Loan thereunder. This Note is entitled to the benefits of the
Credit Agreement (including the Schedules thereto) and all other instruments
evidencing and/or securing the indebtedness hereunder; but neither this
reference to the Credit Agreement nor any provision thereof shall affect or
impair the absolute and unconditional obligation of the Borrowers to pay the
principal of and interest on this Note as herein provided. The occurrence or
existence of an "Event of Default" as defined in the Credit Agreement shall
constitute a default under this Note and the entire indebtedness hereunder may
become or be declared due and payable as may be provided for in the Credit
Agreement.
All agreements involving the Borrowers and the Lender are hereby
expressly limited so that in no contingency or event whatsoever shall the amount
paid or agreed to be paid to the Lender for the use or forbearance of the
indebtedness evidenced hereby exceed the maximum amount which the Lender is
permitted to receive under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision hereof or of the Credit Agreement, at
the time performance of such provision shall be due, shall involve exceeding
such amount, then the obligation to be fulfilled shall automatically be reduced
to the limit of such validity, and if from any circumstance the Lender should
ever receive as interest an amount which would exceed such maximum amount, such
amount which would be excessive interest shall be applied to the reduction of
the principal balance evidenced hereby and not to the payment of interest. As
used herein, the term "applicable law" shall mean the law in effect as of the
date hereof; provided, however, that in the event there is a change in
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the law which results in a higher permissible rate of interest, then this Note
shall be governed by such new law as of its effective date. This provision shall
control every provision of all agreements involving the Borrowers and the
Lender.
Each of the Borrowers and every endorser and guarantor of this Note or
the obligation represented hereby waives presentment, demand, notice, notice of
dishonor, protest and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this Note, assent
to any extension or postponement of the time of payment or any other indulgence,
to any substitution, exchange or release of collateral and to the addition or
release of any other party or person primarily or secondarily liable.
This instrument shall have the effect of an instrument executed under
seal and shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts (without giving effect to any conflicts of laws
provisions contained therein).
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed in
its corporate name under seal by its duly authorized officer as of the day and
year first above written.
XXXXXXXX COFFEE, INC.
By: /s/ Xxx Xxxxx
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COFFEE PEOPLE, INC.
By: /s/ Xxx Xxxxx
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COFFEE PEOPLE WORLDWIDE, INC.
By: /s/ Xxx Xxxxx
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XXXXXX XXXX'X, INC.
By: /s/ Xxx Xxxxx
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(SIGNATURES CONTINUED)
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EDGLO ENTERPRISES, INC.
By: /s/ Xxx Xxxxx
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XXXXXX XXXX'X GOURMET COFFEES CORP.
By: /s/ Xxx Xxxxx
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XXXXXX XXXX'X GOURMET COFFEES
FRANCHISING CORP.
By: /s/ Xxx Xxxxx
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