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EXHIBIT 10.2
PROMISSORY NOTE
$500,000.00 Dallas, Texas August 21, 1995
For value received, the undersigned, 2 DAY VIDEO, INC., a Texas
corporation (the "Maker"), hereby promises to pay to the order of CINEMARK USA,
INC., a Texas corporation (the "Lender"), at Suite 800 - LB 9, 7502 Greenville
Avenue, Dallas, Texas 75231, or at such other place as from time to time may
be designated by the holder of this Note, in lawful money of the United States
of America, the principal sum of FIVE HUNDRED THOUSAND DOLLARS AND NO CENTS
($500,000.00), with interest on the principal balance from time to time
remaining unpaid from the date hereof until default or maturity at a varying
rate per annum equal to the lesser of (a) the Maximum Rate (as hereinafter
defined) or (b) a rate per annum, calculated on the basis of the actual number
of calendar days elapsed but computed as if each year consisted of 365 days,
equal to the Base Rate (as hereinafter defined). Principal amounts borrowed
hereunder may be prepaid, but may not be reborrowed. Each change in the
interest rate to be charged hereunder shall become effective without notice to
the Maker on the effective date of each change in the Maximum Rate or the Base
Rate, as the case may be. Notwithstanding the foregoing, if, at any time, the
Base Rate shall exceed the Maximum Rate, thereby causing the interest hereon to
be limited to the Maximum Rate as provided for in clause (a) preceding, then
any subsequent reductions in the Base Rate shall not reduce the rate of
interest charged hereunder below the Maximum Rate until the total amount of
interest accrued hereon equals the amount of interest which would have accrued
hereon if the Base Rate had been in effect at all times in the period during
which the rate charged hereon was limited to the Maximum Rate. All past due
principal and interest shall bear interest from maturity until paid at a
varying rate per annum equal to the lesser of (a) the Maximum Rate or (b) a
rate per annum, calculated on the basis of the actual number of calendar days
elapsed but computed as if each year consisted of 365 days, equal to the
Default Rate from the date of such nonpayment until paid in full (both before
and after judgment).
As used herein the term "Base Rate" means the rate of interest equal to
the sum of the rate of interest designated in The Wall Street Journal from time
to time as the Prime Rate, which rate is merely a reference rate and is not
intended to be the lowest rate of interest charged by banks in connection with
extensions of credit to debtors, plus two percent (2%); the term "Default Rate"
means the rate of interest equal to the sum of (i) the Base Rate and (ii) five
percent (5%); the term "Maximum Rate" means the maximum interest rate permitted
under applicable law; and the term "applicable law" means the applicable laws
of the State of Texas or applicable laws of the United States, whichever laws
allow the greater rate of interest, as such laws now exist or may be changed or
amended or come into effect in the future.
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This Note is due and payable in eighteen (18) consecutive monthly
installments beginning September 25, 1995 and on or before the twenty-fifth
(25th) day of each month thereafter until the whole amount of principal and
accrued interest is paid. The first seventeen (17) installments shall be in
the amount of Thirty Thousand and No/100 Dollars ($30,000.00) each, which
amount shall include both principal and interest accrued thereon to the date of
such installment. The final installment on February 25, 1997 shall be in an
amount equal to the entire unpaid principal balance hereof plus all accrued,
unpaid interest thereon.
In the event that at maturity or final payment of this Note, whether
arising by acceleration, prepayment, the passage of time or otherwise, the
total amount of interest paid or accrued hereon is less than the total amount
of interest that would have accrued hereon if a varying rate per annum equal to
the Base Rate had at all times been in effect, then on such date of maturity or
final payment, to the fullest extent permitted by applicable law, the Maker
shall pay a final interest payment hereon equal to the amount by which the
amount of interest actually accrued or paid hereon through such date is less
than the lesser of (a) the amount of interest which would have accrued hereon
if the highest lawful rate had at all times been in effect, or (b) the amount
of interest which would have accrued hereon if the Base Rate had at all times
been in effect.
Each payment received by the Lender shall be applied first to late charges
and collection expenses, if any, then to the payment of accrued but unpaid
interest due hereunder, and then to the reduction of the unpaid principal
balance hereof.
Should default be made in the payment of any installment of principal or
interest and continue without cure for ten (10) days after the same installment
is herein permitted to be paid, the Lender may, at the Lender's option,
exercise any or all of the rights, remedies, powers and privileges afforded it
under applicable law, including, without limitation, the right to declare the
unpaid principal balance of this Note, together with all accrued but unpaid
interest on such principal balance, immediately due and payable without demand
or notice and to offset against amounts then due and owing on this Note and
sums deposited by the Maker with the Lender or otherwise owed to the Maker by
the Lender. In the event this note, or any part hereof, is collected through
bankruptcy or other judicial proceedings by an attorney or is placed in the
hands of an attorney for collection after maturity, then the Maker agrees and
promises to pay a reasonable attorney's fee for collection.
No failure or delay on the part of the Lender in exercising any right,
power or privilege hereunder and no course of dealing between the Maker and the
Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege.
Except as may be otherwise provided herein, the makers, signers, sureties,
guarantors and endorsers of this Note severally waive demand, presentment,
notice of dishonor, notice of intent to demand or accelerate payment hereof,
notice of acceleration, diligence in collecting, grace, notice, and protest,
and agree to one or more extensions for any period or periods of time and
partial payments, before or after maturity, without prejudice to the holder.
If this Note shall be collected by legal proceedings or through a probate or
bankruptcy court, or shall be placed in
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the hands of an attorney for collection after default or maturity, the Maker
agrees to pay all costs of collection, including reasonable attorney's fees.
All agreements between the Maker and the Lender, whether now existing or
hereafter arising, and whether written or oral, are hereby limited so that in
no contingency or event whatsoever, whether by reason of demand or otherwise,
shall the amount contracted for, charged, received, paid or agreed to be paid
to the Lender for the use, forbearance or detention of the funds evidenced
hereby or otherwise or for the performance or payment of any covenant or
obligation contained in any instrument securing the payment hereof exceed the
maximum amount permissible under applicable law. If from any circumstance
whatsoever interest would otherwise be payable to the Lender in excess of the
maximum lawful amount, the interest payable to the Lender shall be reduced to
the maximum amount permitted under applicable law; and if from any circumstance
the Lender shall ever receive anything of value deemed interest by applicable
law in excess of the maximum lawful amount, an amount equal to any excessive
interest shall be applied to the reduction of the principal hereof and not to
the payment of interest, or if such excessive interest exceeds the unpaid
balance of principal hereof such excess shall be refunded to the Maker. All
interest paid or agreed to be paid to the Lender shall, to the extent permitted
by applicable law, be amortized, pro rated, allocated and spread throughout the
full period of the loan evidenced hereby until payment in full of the principal
(including the period of any renewal or extension hereof) so that the interest
hereon for such full period shall not exceed the maximum amount permitted by
applicable law. This paragraph shall control all agreements between the Maker
and the Lender relating to the indebtedness evidenced hereby:
THIS PROMISSORY NOTE SHALL BE GOVERNED BY CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS WITHOUT GIVING
EFFECT TO THE CHOICE OF LAW OR CONFLICT OF LAWS RULES THEREOF.
EXECUTED as of the date first set forth above.
THE MAKER
2 DAY VIDEO, INC.
By: /s/ Alan W. Stock
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Alan W. Stock
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