Exhibit 10.14
AMENDED AND RESTATED
PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT ("Pledge Agreement") dated as of
July __, 1996 between CLEARVIEW CINEMA GROUP, INC., a Delaware corporation,
("Pledgor") and THE PROVIDENT BANK, Agent ("Secured Party").
WHEREAS, in connection with the Loans from Lenders to Borrowers, as
evidenced by the Credit Agreement, and to induce the Lenders to make the Loans
thereunder, Pledgor executed and delivered to Secured Party, as Agent for the
benefit of the Lenders, a certain Pledge Agreement dated as of May 29, 1996
wherein, Pledgor granted Secured Party a security interest in the Pledged Stock.
WHEREAS, pursuant to the terms of a Joinder Agreement dated as of July __,
1996, CCC Bedford Cinema Corp. and CCC Kisco Cinema Corp. (collectively the "New
Subsidiaries") became additional Borrowers under the Credit Agreement and a
portion of the Loan proceeds was disbursed to Borrowers for the acquisition of
certain assets now owned by the New Subsidiaries; and
WHEREAS, pursuant to Section 3.3 of the Credit Agreement, Pledgor is
obligated to execute and deliver to Secured Party, a Pledge Agreement pledging
all of its interest in any Subsidiaries now owned or hereafter acquired; and
WHEREAS, in order to comply with said Section 3.3 of the Credit Agreement,
Pledgor and Secured Party have agreed to execute this Amended and Restated
Pledge Agreement to include the stock of the New Subsidiaries as part of the
Pledged Stock.
NOW THEREFORE, in consideration of the Lenders extending the Loans to
Borrowers and continuing to extend credit to the Borrowers, the parties hereby
agree that the Pledge Agreement dated May 29, 1996 is hereby amended and
restated in its entirety as follows:
1. Defined Terms. As used in this Pledge Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and the plural forms of the term defined):
"Borrowers" means Clearview Cinema Group, Inc., CCC Madison Triple
Cinema Corp., CCC ▇▇▇▇▇▇▇ Twin Cinema Corporation, CCC Manasquan Cinema
Corporation, Clearview Theatre Group, Inc., CCC Herricks Cinema Corp., CCC
Port Washington Cinema Corp., CCC Grand Avenue Cinema Corp., CCC Washington
Cinema Corp., CCC ▇▇▇▇▇▇▇ Cinema Corp., CCC ▇▇▇▇▇▇▇ Cinema Corp., CCC New
City
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Cinema Corp., ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Corp., CCC Bedford Cinema Corp.
and CCC Kisco Cinema Corp.
"Certificates" mean any and all certificates or other documents or
instruments now or hereafter received or receivable by Pledgor and
representing Pledgor's interest in the Pledged Stock.
"Credit Agreement " means that certain Credit Agreement dated as of
May 29, 1996, together with that certain Joinder Agreement dated as of July
__, 1996, by and among Borrowers, Agent and Lenders, as the same may be
amended, modified or supplemented from time to time.
"Lenders" mean Provident, and various other lenders as set forth on
Schedule 1 to the Credit Agreement.
"Loans" mean the revolving loan and term loan facilities represented
and evidenced by the Credit Agreement.
"Pledged Stock" means the shares of the capital stock owned
beneficially and of record by Pledgor as set forth on attached Exhibit A,
together with all substitutions therefor, proceeds thereof and therefrom
and all cash dividends in respect thereof as well as all stock and other
securities or property which are issued pursuant to conversion, exercise of
rights, stock split, recapitalization, stock dividend or other corporate
act which are referable to the Pledged Stock (such stock or other
securities are hereinafter referred to as the "Additional Pledged
Securities") and all distributions, whether cash or otherwise, in the
nature of a partial or complete liquidation, dissolution or winding up
which are referable to the Pledged Stock (such distributions are
hereinafter referred to as "Liquidating Distributions").
"Provident" means The Provident Bank, an Ohio banking corporation.
All other capitalized terms used herein have the meanings assigned to them
in the Credit Agreement unless the context hereof otherwise requires.
2. Pledge and Grant of Security Interests. Pledgor hereby pledges, assigns,
hypothecates and transfers to Secured Party, its successors and assigns, all
Pledged Stock and hereby grants to and creates in favor of Secured Party first
priority liens and security interests in the Pledged Stock, as collateral
security for the due and punctual payment when due (whether at maturity by
acceleration or otherwise) in full of all amounts due under the Loans; the due
and punctual performance and observance by Pledgor and the other Borrowers of
their respective agreements, obligations, liabilities and duties under this
Pledge Agreement, the Credit Agreement and all other documents executed in
connection with the Loans (the "Loan Documents"); and all costs incurred by
Secured Party to obtain, perfect, preserve and enforce the liens and security
interests granted by this Pledge Agreement, to collect the Obligations Secured
Hereby (as hereinafter defined) and to maintain and preserve the Pledged Stock,
with such costs including but not limited
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to expenditures made by Secured Party for reasonable attorneys' fees and other
legal expenses and expenses of collection, possession and sale of the Pledged
Stock, together with interest on all such costs at the Default Interest Rate (as
defined in the Loan Documents) (the foregoing subsections (i), (ii) and (iii)
are collectively referred to herein as the "Obligations Secured Hereby").
3. Delivery of Pledged Stock. On the date of the execution of this Pledge
Agreement, Pledgor shall place the Pledged Stock in pledge by delivering the
Certificates to and depositing them with Secured Party or its designated agent.
Pledgor shall also deliver to Secured Party concurrently therewith undated
assignments separate from the Certificates duly executed in blank for each
Certificate representing shares of the Pledged Stock and all other applicable
and appropriate documents and assignments in form suitable to enable Secured
Party to effect the transfer of all or any portion of the Pledged Stock to the
extent hereinafter provided.
4. Delivery of Additional Pledged Securities and Liquidating Distributions;
Proceeds, Cash Dividends and Voting.
a. Except to the extent provided in the Credit Agreement, if Pledgor shall
hereafter become entitled to receive or shall receive any cash dividends, cash
proceeds, any Additional Pledged Securities, any Liquidating Distributions, or
any other cash or non-cash payments on account of the Pledged Stock, Pledgor
agrees to accept the same as Secured Party's agent and to hold the same in trust
on behalf of and for the benefit of Secured Party and agrees to promptly deliver
the same or any certificates therefor forthwith to Secured Party in the exact
form received, with the endorsement of Pledgor, when necessary, or appropriate
undated assignments separate from the Certificates, duly executed in blank, to
be held by Secured Party subject to the terms hereof.
b. Notwithstanding anything contained in this Pledge Agreement to the
contrary, Pledgor shall be entitled to exercise voting rights with respect to
the Pledged Stock, so long as there has not occurred any Default or Event of
Default under the terms of the Credit Agreement or any other Loan Documents.
5. Representations and Warranties of Pledgor. To induce Secured Party to
enter into this Pledge Agreement and to induce the Lenders to enter into the
Credit Agreement, and to induce Lenders to extend credit and continue to extend
credit to the Borrowers, Pledgor makes the following representations and
warranties to Secured Party:
a. Pledgor is the legal, record and beneficial owner of, and has good
and marketable title to, the Pledged Stock.
b. Pledgor holds the Pledged Stock free and clear of all liens,
charges, encumbrances, security interests and restrictions of every kind
and nature whatsoever except only the liens and security interests created
by this Pledge Agreement.
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c. Each security which is part of the Pledged Stock has been duly and
validly issued and is fully paid and nonassessable. The Pledged Stock
constitutes one hundred percent (100%) of the issued and outstanding common
stock of each of the respective corporations and there are no outstanding
subscriptions, options, warrants, calls, commitments or agreements to issue
any additional shares of stock of such companies or to purchase, redeem or
retire any outstanding shares of such Pledged Stock, nor are there
outstanding any securities or obligations which are convertible into or
exchangeable for any shares of capital stock of such companies.
d. This Pledge Agreement has been duly executed and delivered by
Pledgor and constitutes the legal, valid and binding obligation of Pledgor
enforceable against it in accordance with its terms.
e. No consent or approval of any governmental body, regulatory
authority or securities exchange is required to be obtained by Pledgor in
connection with the execution, delivery and performance of this Pledge
Agreement.
f. The execution, delivery and performance of this Pledge Agreement
will not violate any provision of any applicable law or regulation or of
any writ or decree of any court or governmental instrumentality or of any
indenture, contract, agreement or other undertaking to which Pledgor is a
party or which purports to be binding upon Pledgor or upon any of its
assets and will not result in the creation or imposition of any lien,
charge or encumbrance on or security interest in any of the assets of
Pledgor except as contemplated by this Pledge Agreement.
g. The pledge, assignment and delivery of the Pledged Stock pursuant
to this Pledge Agreement creates valid first liens and first security
interests in the Pledged Stock which are perfected and senior to any
pledge, lien, mortgage, hypothecation, security interest, charge, option or
encumbrance or to any agreement purporting to grant to any third party a
security interest in the property or assets of Pledgor which would include
the Pledged Stock.
6. Pledgor's Covenants.
a. Pledgor covenants and agrees that it will defend Secured Party's lien
and security interest in and to the Pledged Stock against the claims and demands
of all persons whosoever.
b. Subject to the terms and conditions of the Credit Agreement, Pledgor
covenants and agrees that it will not create, incur or permit to exist any
pledge, lien, mortgage, hypothecation, security interest, charge, option or any
other encumbrance with respect to any of the Pledged Stock, or any interest
therein, or any proceeds thereof, except for the lien and security interest
provided for or referred to in this Pledge Agreement.
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c. Pledgor covenants and agrees that it will not consent to the issuance of
any additional shares of capital stock of any class of those companies set forth
on Exhibit A unless such shares are pledged and the Certificates therefor
delivered to Secured Party simultaneously with the issuance thereof, together
with appropriate undated assignments separate from the Certificates duly
executed in blank.
7. Rights and Remedies upon Default. If any Event of Default under the
Credit Agreement or any of the Loan Documents shall occur and be continuing,
Secured Party may, subject to the terms of the Credit Agreement, by notice of
default given to Pledgor, declare the Obligations Secured Hereby to be forthwith
due and payable, whereupon such Obligations Secured Hereby shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived, anything contained herein
or in the Loan Documents to the contrary notwithstanding; and/or proceed to
protect and enforce its rights under this Pledge Agreement, the Credit Agreement
or the other Loan Documents by suit in equity, action at law or any other
appropriate proceeding and Secured Party shall have all of the rights and
remedies provided by applicable law, including, without limitation, the rights
and remedies of a secured party under the Uniform Commercial Code and, in
addition, thereto, Secured Party shall be entitled to register the Pledged Stock
in its name or in the name of its nominee and to exercise all voting and
corporate rights with respect to the Pledged Stock as it may determine, without
liability therefore except to account to Pledgor for property actually received
by it in respect of the Pledged Stock as a result thereof, but Secured Party
shall not have any duty to exercise any voting and corporate rights in respect
of the Pledged Stock and shall not be responsible or liable to Pledgor or any
other person for any failure to do so or delay in so doing.
Without limiting the generality of the foregoing, but subject to the terms
of the Credit Agreement, Secured Party shall have the right to sell the Pledged
Stock, or any part thereof, at public or private sale or at any broker's board
or on any securities exchange for cash, upon credit or for future delivery, and
at such price or prices as Secured Party may deem best, and Secured Party may
(except as otherwise provided by law) be the purchaser of any or all of the
Pledged Stock so sold and thereafter may hold the same, absolutely, free from
any right or claim of whatsoever kind. Secured Party is authorized, at any such
sale, if it deems it advisable so to do, to restrict the number of prospective
bidders or purchasers and/or further restrict such prospective bidders or
purchasers to persons who will represent and agree that they are purchasing for
their own account, for investment, and not with a view to the distribution or
resale of the Pledged Stock and may otherwise require that such sale be
conducted subject to restrictions as to such other matters as Secured Party may
deem necessary in order that such sale may be effected in such manner as to
comply with all applicable state and federal securities laws; upon any such sale
Secured Party shall have the right to deliver, assign and transfer to the
purchaser thereof the Pledged Stock so sold.
Each purchaser at any such sale shall hold the property sold, absolutely,
free from any claim or right of whatsoever kind, including any equity or right
of redemption, of Pledgor, who hereby specifically waives all rights of
redemption, stay or appraisal which it
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has or may have under any rule of law or statute now existing or hereafter
adopted. Secured Party shall give Pledgor not less than ten (10) days' written
notice of its intention to make any such public or private sale at broker's
board or on a securities exchange. Such notice, in case of public sale, shall
state the time and place fixed for such sale, and, in case of sale at broker's
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which the Pledged Stock, or that portion
thereof so being sold, will first be offered for sale at such board or exchange.
Any such public sale shall be held at such time or times within the
ordinary business hours and at such place or places as Secured Party may fix in
the notice of such sale. At any sale the Pledged Stock may be sold in one lot as
an entirety or in parts, as Secured Party may determine. Secured Party shall not
be obligated to make any sale pursuant to any such notice. Secured Party may,
without notice or publication, adjourn any sale, and such sale may be made at
any time or place to which the same may be so adjourned. In case of any sale of
all or any part of the Pledged Stock on credit or for future delivery, the
Pledged Stock so sold may be retained by Secured Party until the selling price
is paid by the purchaser thereof, but Secured Party shall not incur any
liability in case of the failure of such purchaser to take up and pay for the
Pledged Stock so sold and, in case of any such failure, such Pledged Stock may
again be sold upon like notice.
Secured Party, instead of exercising the power of sale herein conferred
upon it, may proceed by a suit or suits at law or in equity to foreclose this
Pledge Agreement and sell the Pledged Stock, or any portion thereof, under a
judgment or decree of a court or courts of competent jurisdiction.
On any sale of the Pledged Stock, Secured Party is hereby authorized to
comply with any limitation or restriction in connection with such sale that it
may be advised by counsel is necessary in order to avoid any violation of
applicable law or in order to obtain any required approval of the purchaser or
purchasers by any governmental regulatory authority or officer or court.
Compliance with the foregoing procedures shall result in such sale or
disposition being considered or deemed to have been made in a commercially
reasonable manner.
In furtherance of the exercise by Secured Party of the rights and remedies
granted to it hereunder, Pledgor agrees that, upon request of Secured Party and
at the expense of Pledgor, it will use its best efforts to obtain all
governmental approvals necessary for or incidental to the exercise of remedies
by Secured Party with respect to the Pledged Stock or any part thereof.
Pledgor hereby acknowledges that, notwithstanding that a higher price might
be obtained for the Pledged Stock at a public sale than at a private sale or
sales, the making of a public sale of the Pledged Stock may be subject to
registration requirements and other legal restrictions compliance with which
could require such actions on the part of Pledgor, could entail such expenses
and could subject Secured Party and any underwriter through whom the Pledged
Stock may be sold and any controlling person of any thereof to such liabilities,
as would make the making of a public sale of the Pledged Stock impractical.
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Accordingly, Pledgor hereby agrees that private sales made by Secured Party in
accordance with the provisions of Section 7 hereof may be at prices and on other
terms less favorable to the seller than if the Pledged Stock were sold at public
sale, and that Secured Party shall not have any obligation to take any steps in
order to permit the Pledged Stock to be sold at a public sale complying with the
requirements of federal and state securities and similar laws, and that sale may
be at a private sale provided that such sale is made at arms length and in a
commercially reasonable manner.
8. Indemnification. Pledgor agrees to indemnify and hold harmless Secured
Party and the Lenders (to the full extent permitted by law) from and against any
and all claims, demands, losses, judgments and liabilities for penalties and
excise taxes of whatever nature, and to reimburse Secured Party and the Lenders
for all costs and expenses, including reasonable legal fees and disbursements,
growing out of or resulting from the Pledged Stock, this Pledge Agreement or the
administration and enforcement or exercise of any right or remedy granted to
Secured Party hereunder. In no event shall Secured Party or any Lender be liable
to Pledgor for any matter or thing in connection with this Pledge Agreement
other than to account for moneys actually received by it in accordance with the
terms hereof.
9. Distribution of Pledged Stock. Upon enforcement of this Pledge Agreement
following the occurrence of an Event of Default under the Credit Agreement or
any other Loan Documents, the proceeds of the Pledged Stock shall be applied as
received by Secured Party in the manner provided in the Credit Agreement.
10. Release of Pledged Stock. Upon full payment of the Loans and
satisfaction of all Obligations in connection therewith, Secured Party shall
take all action necessary to terminate the security interest in the Pledged
Stock.
11. Further Assurances. Pledgor agrees that at any time and from time to
time upon the request of Secured Party, Pledgor will execute and deliver such
further documents and do such further acts and things as Secured Party
reasonably requests in order to effect the purposes of this Pledge Agreement.
12. No Waiver; Cumulative Remedies. Secured Party shall not by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by
Secured Party, and then only to the extent therein set forth. A waiver by
Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which Secured Party would otherwise
have on any future occasion. No failure to exercise or any delay in exercising
on the part of Secured Party any right, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided are cumulative and not exclusive of any rights and
remedies provided by law.
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13. Severability of Provisions. The provisions of this Pledge Agreement are
severable, and if any clause or provision hereof shall be held invalid or
unenforceable in whole or in part, then such invalidity or unenforceability
shall attach only to such clause or provision or part thereof and shall not in
any manner affect such clause or provision in any other jurisdiction or any
other clause or provision in this Pledge Agreement in any jurisdiction.
14. Amendments; Choice of Law; Binding Effect.
a. None of the terms or provisions of this Pledge Agreement may be altered,
modified or amended except by an instrument in writing, duly executed by each of
the parties hereto.
b. This Pledge Agreement shall be governed by and construed and interpreted
in accordance with the laws of the State of Ohio.
c. This Pledge Agreement shall be binding upon an inure to the benefit of
the parties hereto and their respective successors and assigns.
15. Address of Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing, and if addressed to
Pledgor, mailed or delivered at:
(i) If to Borrowers, at:
Clearview Cinema Group, Inc.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: A. ▇▇▇▇ ▇▇▇▇, President
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
and, if to Secured Party, mailed or delivered to it, addressed to it at:
The Provident Bank, Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇, Muething & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other complying as to delivery with the terms of this
section. All notices, requests, demands and other communications provided for
hereunder shall be deemed given or delivered if in writing addressed as provided
above and if either actually delivered at said address; or in, the case of a
letter, three (3) Business Days shall have elapsed after the same shall have
been deposited in the United States mail, postage prepaid and registered or
certified.
16. Headings. The descriptive headings hereunder used are for convenience
only and shall not be deemed to limit or otherwise effect the construction of
any provision hereof.
17. Counterpart Execution. This Pledge Agreement may be executed in several
counterparts each of which shall constitute an original, but all of which
together shall constitute one and the same agreement.
[Remainder of page intentionally left blank. Signature page follows.]
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IN WITNESS WHEREOF, the undersigned have caused this Pledge Agreement to be
duly executed and delivered as of the day and year first above written.
WITNESSES: PLEDGOR:
CLEARVIEW CINEMA GROUP, INC.
____________________________ By: _________________________
Name: _________________________
____________________________ Its: _________________________
SECURED PARTY:
THE PROVIDENT BANK, AGENT
____________________________ By: _________________________
Name: _________________________
____________________________ Its: _________________________
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EXHIBIT "A"
PLEDGED STOCK
PLEDGED SHARES CERTIFICATE NO. NO. SHARES
--------------------------------------------------------------------------------
CCC Madison Triple Cinema Corp. 3 196
CCC ▇▇▇▇▇▇▇ Twin Cinema Corporation 4 19.6
CCC Manasquan Cinema Corporation 2 10
Clearview Theatre Group, Inc. 2 1000
CCC Herricks Cinema Corp. 1 100
CCC Port Washington Cinema Corp. 1 100
CCC Grand Avenue Cinema Corp. 1 100
CCC Washington Cinema Corp. 1 100
CCC ▇▇▇▇▇▇▇ Cinema Corp. 1 100
CCC ▇▇▇▇▇▇▇ Cinema Corp. 1 100
CCC New City Cinema Corp. 1 100
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Corp. 1 100
CCC Bedford Cinema Corp. 1 100
CCC Kisco Cinema Corp. 1 100