Exhibit 10.19
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. IT MAY NOT BE SOLD, PLEDGED,
ASSIGNED OR TRANSFERRED UNLESS REGISTERED THEREUNDER OR UNLESS AN
EXEMPTION FROM SUCH REGISTRATION SHALL BE AVAILABLE.
THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY ARE SUBORDINATE TO ANY
SENIOR INDEBTEDNESS ENTERED INTO BY THE COMPANY AFTER THE DATE HEREOF,
AND EACH HOLDER OF THIS NOTE AGREES THAT THE INDEBTEDNESS EVIDENCED BY
THIS NOTE SHALL BE SUBORDINATE TO THE COMPANY'S SENIOR INDEBTEDNESS.
8% SUBORDINATED PROMISSORY NOTE
$50,000.00 New York, New York
August 31, 1995
FOR VALUE RECEIVED, CLEARVIEW CINEMA GROUP, INC., a Delaware
corporation with its offices at 7 Waverly Place, Madison, New Jersey 07940 (the
"Company"), hereby promises to pay to the order of ROBERT G. DAVIDOFF, an
individual with his office at 135 East 57th Street, New York, New York 10022
(the "Holder"), the principal amount of Fifty Thousand Dollars ($50,000.00),
together with interest calculated from the date hereof in accordance with the
provisions of this 8% Subordinated Promissory Note ("Note"). Payments on this
Note are to be made at the Holder's address stated above, or such other address
as duly designated by the Holder, in lawful money of the United States of
America.
1. Payment of Interest; Rate. This Note shall bear interest on the
outstanding principal amount hereof at an annual interest rate of eight percent
(8%) (based upon a 360-day year), payable quarterly on October 15, January 15,
April 15 and July 15 of each year (each of such quarterly interest payment dates
being referred to herein as an "Interest Payment Date") commencing October 15,
1995. In the event that an Interest Payment Date is not a business day, the
Company shall pay to the Holder the interest payment on the first business day
following the applicable Interest Payment Date.
2. Payment of Principal. (a) Principal shall be payable on the Note in
one installment on August 31, 1997 (the "Initial Maturity Date"). On the Initial
Maturity Date, the Company shall have the option ("Conversion Option") of not
repaying the Note and instead converting the outstanding principal
amount on the Note into another note in such outstanding principal amount
("Converted Note") payable to the Holder. The Converted Note shall bear interest
on the outstanding principal amount at the annual rate of eight percent (8%) and
shall mature five (5) years from the date of its issuance ("Maturity Date").
Interest and principal shall be payable on the Converted Note in twenty (20)
equal quarterly installments.
(b) If the Company exercises the Conversion Option, upon its issuance
of the Converted Note to the Holder, it shall also issue to the Holder a
warrant, substantially in the form of Exhibit A hereto ("New Warrant"), to
purchase 75 shares of the common stock, $.01 par value per share of the Company
("Common Stock"), at an exercise price of $2,000 per share, subject to
adjustment as set forth in the New Warrant. The New Warrant shall be exercisable
for five years and shall be in addition to the Warrants (as defined in Section 4
herein) issued pursuant to Section 4 of this Note.
3. Prepayment of Note; Rights to Purchase Additional Securities. (a)
Prior to the Initial Maturity Date (or the Maturity Date for the Converted
Note), the Company may prepay, without penalty or premium, the outstanding
principal amount of this Note, or the Converted Note, provided that any accrued
and unpaid interest is paid when this Note, or the Converted Note, is prepaid.
If the Company prepays the entire outstanding principal amount of this Note (and
accrued and unpaid interest) on or prior to August 31, 1996, Warrant A (as
defined herein) shall be canceled and returned to the Company by the Holder.
(b) Prior to the Initial Maturity Date (or the Maturity Date for the
Converted Note), if the Company consummates any equity or subordinated debt
financing ("New Financing"), the Company shall have the option to require the
Holder to convert the Note (or Converted Note, as applicable) into debt and/or
equity securities ("New Securities") that are being issued in the New Financing,
provided that the Holder receives in exchange for its Note (or Converted Note,
as applicable) New Securities on the same terms and conditions as any other
holder of New Securities.
(c) (i) If at any time while either of the Warrants or the New
Warrants remain outstanding and Section 9.6 of the Original Investment Agreement
has not been terminated, the Company proposes to issue any of its equity
securities to any person (other than pursuant to a plan or arrangement approved
pursuant to Section 6.1 (a)(iv) of the Original Investment Agreement, or as
additional consideration to a financial institution that is not an Affiliate of
any Stockholder in connection with the making of a loan to the Company (or its
subsidiaries), or pursuant to a New Financing), the Holder shall have the right
to purchase, upon the same terms, a proportionate quantity of those securities
(in the
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proportion that the number of shares of Common Stock underlying the Warrants and
the New Warrants, as applicable bears to the total number of shares of the
Company's Common Stock then held by all stockholders); for this purpose, shares
of the Company's Common Stock issuable upon conversion of securities then held
by all stockholders or upon exercise of warrants then held by all stockholders
shall be deemed to be then held by stockholders. The provisions of this Section
3(c)(i) are not intended to be duplicative with the provisions of Section 9.6 of
the Original Investment Agreement.
(ii) If at any time prior to the date the indebtedness evidenced by
this Note has been paid in full the Company proposes to issue any subordinated
debt financing (other than pursuant to a New Financing), the Holder shall have
the right to participate in such issuance of debt, upon the same terms, in a
proportionate principal amount (in the proportion that the principal amount of
subordinated debt held by the Holder bears to the total principal amount of the
subordinated debt of the Company then held by all holders); provided, however,
that this right shall terminate if not exercised in connection with the first
financing to which this Section is applicable.
4. Warrants. Upon issuance of the Note to the Holder, the Company
shall also issue two (2) warrants ("Warrants") to the Holder, which Warrants
shall be designated "Warrant A" and "Warrant B" and shall be in substantially
the forms set forth in Exhibits B and C hereto. Each Warrant shall entitle the
Holder for a five-year period to purchase 37.50 shares of the Company's Common
Stock at an exercise price of $2,000 per share, subject to adjustment as set
forth in each Warrant.
5. Representations and Warranties. The Company represents and warrants
to the Holder (which representations and warranties shall be deemed material and
to have been relied upon by the Holder in its decision to purchase the Note)
that the representations and warranties made by the Company in Section 4 of the
Investment and Stockholders' Agreement dated December 21, 1994 ("Original
Investment Agreement") by and between Clearview Cinema Group, Inc., A. Dale
Mayo, Brett E. Marks and CMNY Capital II, L.P., are correct in all material
respects as of the date of this Note ("Issuance Date") with the same effect as
though made in and as of such Issuance Date, except for those matters disclosed
in Exhibit D hereto. The representations and warranties set forth in Section 4
of the Original Investment Agreement are incorporated herein by reference as if
fully set forth herein.
6. Covenants. The Company covenants to the Holder that it shall comply
with the covenants set forth in Section 6 of the Original Investment Agreement
as though such covenants were set forth herein. The covenants set forth in
Section 6 are
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incorporated herein by reference as if fully set forth herein.
7. Financing Proceeds. The Company covenants that the proceeds from
the issuance of the Note are to be used for the purposes set forth on Exhibit E.
Any diversion of use of the proceeds other than as set forth on Exhibit E
without the prior written consent of the Holder shall constitute a covenant
violation ("Covenant Violation"). Upon any such Covenant Violation, the Company
shall immediately repay to the Holder the entire amount of the principal amount
of the Note, including any costs and expenses incurred by the Holder in
enforcing its rights in connection with such Covenant Violation. Nothing
contained in this Section shall be construed to restrict or limit in any way the
Holder's right to seek any remedy it deems advisable against the Company for any
damages, costs, expenses or losses it may sustain or to bring an action against
the Company in connection with such Covenant Violation. The Company will notify
the Holder orally and in writing immediately upon the occurrence of such
Covenant Violation.
8. Post-Closing Review and Inspection. No later than ninety (90) days
after the sale of the Note, the Holder may conduct a review of the offices,
properties, assets, operations and financial and other records of the Company to
ensure that the proceeds of the financing are being used for the purposes set
forth in this Agreement (the "Post-Closing Review and Inspection"). In
connection with its Post-Closing Review and Inspection, the Holder and its
designated representative or representatives shall have the right to visit and
inspect during normal business hours, any of the operations, offices,
properties, or assets of the Company, and inspect financial and other records,
and discuss the Company's affairs, finances and accounts with the Company's
officers, auditors and counsel. All expenses incurred by the Holder in
connection with its Post-Closing Review and Inspection shall be paid by the
Company.
9. Subordination. (a) The Company, for itself, its successors and
assigns, covenants and agrees, and the Holder of this Note covenants and agrees,
that the indebtedness evidenced by this Note shall be subordinate and subject in
right of payment, to the prior payment of all Senior Indebtedness of the
Company, provided such subordination is reflected in a subordination agreement
by and among the Company, the Holder of this Note and the holder of the Senior
Indebtedness. The Holder of this Note agrees to enter into a subordination
agreement with the holder of the Senior Indebtedness.
(b) For purposes of this Section 9, "Senior Indebtedness" shall mean
the principal of, premium, if any, and interest (including any interest accruing
after the filing of a petition in bankruptcy) on and other amounts due on or in
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connection with any indebtedness of the Company as defined in and arising under
any loan, credit, security or similar agreement with a bank, insurance company,
or other financial institution or affiliate created, incurred, assumed, or
guaranteed by the Company after the date of this Note, and, all renewals,
extensions, and refundings thereof, which by the terms of the instrument
creating or evidencing such indebtedness is expressly made senior to in right of
payment to, the payment of principal of and interest on the Note.
10. Default. Each of the following events shall constitute an "Event
of Default" under this Note:
(a) the failure of the Company to pay when due any interest, principal
or any other sum under this Note, and such default shall remain uncured for a
five (5) business day period;
(b) the failure of the Company to observe or perform any covenant set
forth in this Note, the Warrants or Original Investment Agreement and such
default shall remain uncured for a twenty (20) business day period after notice
of such default from the Holder;
(c) the breach of any representation, warranty or covenant made by the
Company in this Note, the Warrants, or the Original Investment Agreement and
such default shall remain uncured for a twenty (20) business day period after
notice of such default form the Holder;
(d) the death, bankruptcy or insolvency of A. Dale Mayo;
(e) the Company shall cease operations or cease doing business as an
operator of movie theaters;
(f) A. Dale Mayo shall no longer serve as President of the Company or
shall not be a principal stockholder of the Company;
(g) the Company shall (1) file, or consent by answer or otherwise to
the filing against it of, a petition for relief or reorganization or arrangement
or any other petition in bankruptcy or insolvency law of any jurisdiction, (2)
make an assignment for the benefit of its creditors, (3) consent to the
appointment of a custodian, receiver, trustee or other officer with similar
powers of itself or of any substantial part of its property, (4) be adjudicated
insolvent or be liquidated, or (5) take corporate action for the purpose of any
of the foregoing; or
(h) a court or governmental authority of competent jurisdiction shall
enter an order appointing, without consent by
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the Company, a custodian, receiver, trustee or other officer with similar powers
with respect to it or with respect to any substantial part of its property, or
if an order for relief shall be entered in any case or proceeding for
liquidation or reorganization or otherwise to take advantage of any bankruptcy
or insolvency law of any jurisdiction, or ordering the dissolution, winding-up
or liquidations of the Company, or if any petition for any such relief shall be
filed against the Company and such petition shall not be dismissed within 60
days;
Upon the occurrence of any Event of Default, the unpaid principal amount of and
the accrued interest on this Note shall automatically become immediately due and
payable, without presentment, demand, protest or other requirements of any kind,
all of which are hereby expressly waived by the Company.
11. Counsel Fees. The Company shall reimburse the Holder for its
reasonable fees and disbursements charged by its outside legal counsel, Reid &
Priest LLP, in connection with the preparation, negotiation, execution and
delivery of this Note and the transactions thereunder, and all other documents
delivered in connection therewith, provided that the aggregate amount of such
reimbursement shall not exceed $5,000. The Company also agrees to pay all
reasonable legal expenses related to any modifications, waivers, consents,
amendments, or enforcement, relating to the Note and Warrants.
12. Small Business Administration ("SBA") Forms. The Company agrees to
cooperate with the Holder in connection with the Holder's preparation and filing
of the SBA Forms listed at Exhibit F hereto and shall furnish from time to time
to the Holder promptly upon reasonable request all information necessary to
enable the Holder to prepare and file the SBA Forms listed on Exhibit F hereto
and any other information reasonably requested or required by any governmental
agency asserting jurisdiction over the Holder.
13. Origination Points to Holder Upon Issuance of the
Note. The Company shall pay to the Holder origination points of
two percent (2%) of the original principal amount of this Note.
14. Miscellaneous.
(a) This Note shall be construed in accordance with and governed by
the laws of the State of New York (without regard to its conflict of laws
principles).
(b) The Company agrees to remain and continue bound hereby
notwithstanding any extension or extensions of time of payment, and
notwithstanding any failure or omission to make presentment or demand for
payment of the Note or to protest it for
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non-payment, and hereby expressly waives any and all presentment or demand for
its payment and protest for time of payment of it, or any part of it, or its
non-payment or dishonor.
(c) Payments made on this Note shall be applied first to accrued
interest, then to other amounts which may be due (other than principal), and
then to principal.
(d) Notwithstanding anything to the contrary contained in this Note,
no interest shall accrue or be payable hereunder that is in excess of the
maximum amount permitted under the applicable law relating to usury. Any
interest that is in excess of the maximum amount permitted under the applicable
law relating to usury shall be applied to reduce the outstanding principal
balance hereof and shall be deemed to represent a prepayment of principal
hereunder.
(e) Upon an Event of a Default with respect to this Note, interest
thereafter shall accrue and be payable at 16% per annum. In the event this Note
is placed for collection, the Company shall pay all collection costs, including
attorneys' fees, in addition to all other amounts due hereunder.
(f) No course of dealing between the Company and the Holder or any
delay on the part of the Holder in exercising any rights hereunder shall operate
as a waiver of any rights of a holder hereof, except to the extent expressly
waived in writing by the Holder.
(g) This Note may not be modified or discharged except by an
instrument in writing executed by the Company and the Holder.
(h) This Note shall be binding upon and inure to the successors and
assigns of the parties hereto.
IN WITNESS WHEREOF, the Company has caused this Note to be executed by
its President.
CLEARVIEW CINEMA GROUP, INC.
By:____________________________
Name: A. Dale Mayo
Title: President
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Correction and Addendum
This Correction and Addendum to the 8% Subordinated Promissory Note
dated August 31, 1995 (the "Note") in the original principal amount of $50,000
issued by Clearview Cinema Group, Inc. to the order of Robert G. Davidoff is
given to correct certain typographical errors appearing in the Note relating to
certain warrants issued or to be issued to the holder. Capitalized terms used in
this Correction and Addendum without definition shall have the meanings ascribed
to such terms in the Note.
The first sentence of Section 2(b) of the Note, which reads as
follows: "If the Company exercises the Conversion Option, upon its issuance of
the Converted Note to the Holder, it shall also issue to the Holder a warrant,
substantially in the for of Exhibit A hereto ("New Warrant"), to purchase 75
shares of the common stock, $.01 par value per share of the Company ("Common
Stock"), at an exercise price of $2,000 per share, subject to adjustment as set
forth in the New Warrant" is hereby corrected to read as follows: "If the
Company exercises the Conversion Option, upon its issuance of the Converted Note
to the Holder, it shall also issue to the Holder a warrant, substantially in the
form of Exhibit A hereto ("New Warrant"), to purchase 12.5 shares of the common
stock, $.01 par value per share of the Company ("Common Stock"), at an exercise
price of $2,000 per share, subject to adjustment as set forth in the New
Warrant".
The second sentence of Section 4 of the Note, which reads as follows:
"Each Warrant shall entitle the Holder for a five-year period to purchase 37.50
shares of the Company's Common Stock at an exercise price of $2,000 per share,
subject to adjustment as set forth in each Warrant" is hereby corrected to read
as follows: "Each Warrant shall entitle the Holder for a five-year period to
purchase 6.25 shares of the Company's Common Stock at an exercise price of
$2,000 per share, subject to adjustment as set forth in each Warrant."
[Remainder of Page Intentionally Left Blank]
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This Correction and Addendum shall be deemed to correct the
typographical errors identified herein as of the date of the Note. This
Correction and Addendum is given solely to correct the aforesaid typographical
errors and shall not be deemed to be a novation, restatement or renewal or
otherwise to affect the Note.
Clearview Cinema Group, Inc.
By:____________________________
Name:
Title:
Date:__________________________
Accepted and agreed:
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Robert G. Davidoff
Date:__________________________
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Correction and Addendum
This Correction and Addendum to the 8% Subordinated Promissory Note
dated August 31, 1995 (the "Note") in the original principal amount of $50,000
issued by Clearview Cinema Group, Inc. to the order of Robert G. Davidoff is
given to correct certain typographical errors appearing in the Note relating to
certain warrants issued or to be issued to the Holder. Capitalized terms used in
this Correction and Addendum without definition shall have the meanings ascribed
to such terms in the Note.
The first sentence of Section 2(b) of the Note, which reads as
follows: "If the Company exercises the Conversion Option, upon its issuance of
the Converted Note to the Holder, it shall also issue to the Holder a warrant,
substantially in the for of Exhibit A hereto ("New Warrant"), to purchase 75
shares of the common stock, $.01 par value per share of the Company ("Common
Stock"), at an exercise price of $2,000 per share, subject to adjustment as set
forth in the New Warrant" is hereby corrected to read as follows: "If the
Company exercises the Conversion Option, upon its issuance of the Converted Note
to the Holder, it shall also issue to the Holder a warrant, substantially in the
form of Exhibit A hereto ("New Warrant"), to purchase 12.5 shares of the common
stock, $.01 par value per share of the Company ("Common Stock"), at an exercise
price of $2,000 per share, subject to adjustment as set forth in the New
Warrant".
The second sentence of Section 4 of the Note, which reads as follows:
"Each Warrant shall entitle the Holder for a five-year period to purchase 37.50
shares of the Company's Common Stock at an exercise price of $2,000 per share,
subject to adjustment as set forth in each Warrant" is hereby corrected to read
as follows: "Each Warrant shall entitle the Holder for a five-year period to
purchase 6.25 shares of the Company's Common Stock at an exercise price of
$2,000 per share, subject to adjustment as set forth in each Warrant."
[Remainder of Page Intentionally Left Blank]
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This Correction and Addendum shall be deemed to correct the
typographical errors identified herein as of the date of the Note. This
Correction and Addendum is given solely to correct the aforesaid typographical
errors and shall not be deemed to be a novation, restatement or renewal or
otherwise to affect the Note.
Clearview Cinema Group, Inc.
By:__________________________
Name:
Title:
Date:________________________
Accepted and agreed:
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Robert G. Davidoff
Date:____________________
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Exhibits to 8% Subordinated Promissory Note
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Exhibit Number Descriptions
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A Form of New Warrant
B Warrant A
C Warrant B
D Exceptions to Representations
and Warranties
E Description of Use of Financing Proceeds
F Small Business Administration
Forms
[Exhibits are not included, but will be provided by the Company
upon request.]