EXHIBIT 10.02
AGREEMENT, dated as of September 1, 1997, by and among Clearview
Cinema Group, Inc., a Delaware corporation ("Clearview"), First New York Realty
Co. Inc., a New York corporation ("First New York"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇, an
individual resident of the State of New York ("Marks").
WHEREAS, from its formation until May 31, 1997, Marks was the Vice
President-Development of Clearview and, as such, among other things, sought to
identify movie theaters that could be suitable acquisition candidates for
Clearview and to identify locations in appropriate communities that could be
developed as movie theaters to be operated by Clearview; and
WHEREAS, effective as of June 1, 1997, Marks resigned as the Vice
President-Development of Clearview and executed a consulting and confidentiality
agreement (the "Consulting Agreement") with Clearview pursuant to which, among
other things, Marks as a consultant has been retained to continue to seek to
identify suitable theaters and locations; and
WHEREAS, First New York is a New York City-based realty brokerage
firm that represents buyers, sellers, lessors and lessees of real property in
New York and New Jersey; and
WHEREAS, generally, First New York is paid a commission by the
seller or lessor of a property when First New York has represented a party
involved in the sale or lease of such property, regardless of whom First New
York represented in such transaction; and
WHEREAS, Marks is a licensed real estate salesman with and executive
vice president of First New York and, as such, is involved in the representation
of parties in real estate transactions; and
WHEREAS, the parties hereto have agreed that it is desirable and
appropriate to set forth their mutual understanding of the circumstances, if
any, in which First New York may be entitled to be paid a commission with
respect to a transaction to which Clearview is a party.
NOW, THEREFORE, the parties hereto, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, agree as follows.
1. ACKNOWLEDGMENT OF PRIOR COMMISSIONS. Clearview hereby
acknowledges and agrees that, if such transactions are consummated, First New
York will be entitled to commissions (payable by the seller/landlord thereof)
with respect to Clearview's acquisition of the fee or leasehold interests in the
real properties currently owned or operated by United Artists Theatre Circuit,
Inc. a Maryland corporation ("UA"), or one of its subsidiaries and known as the
Marboro Cinema 4 in Brooklyn, New York, the Bronxville Theatre in Bronxville,
New York, the Larchmont Theatre in Larchmont, New York, the Mamaroneck Playhouse
in Mamaroneck, New
York, the New City Cinema 304 in New City, New York and the ▇▇▇▇▇ Theatre in
Passaic, New Jersey. Clearview also hereby acknowledges and agrees, that, if
such transactions are consummated, Marks will be entitled to commissions payable
by First New York.
2. ACKNOWLEDGMENT OF NO COMMISSION. First New York hereby
acknowledges and agrees that, with respect to each acquisition by Clearview or
any of its subsidiaries of any interest in any real property prior to the date
hereof, it is not entitled to any fee or commission of any kind from any party
thereto regardless of whether Marks was involved on Clearview's behalf with
respect thereto. In addition, First New York hereby acknowledges and agrees
that, absent an agreement in writing with Clearview to the contrary, it shall
not be entitled to any fee or commission from Clearview with respect to any
transaction of any type regardless of the activities of Marks with respect
thereto. Finally, First New York hereby acknowledges and agrees that UA and
Clearview had a relationship prior to the negotiation of the agreements for the
transactions referred to above in Section 1, that representatives of UA and
Clearview have been, are and, in the future, may be discussing one or more
possible transactions other than those referred to above in Section 1 and that,
subject to Section 4, First New York will be entitled to a commission or fee
with respect to any such transaction to the extent, but only to the extent,
agreed to in writing by UA or its duly authorized representative.
3. MARKS' COMMISSIONS ON FUTURE TRANSACTIONS. Marks shall
disclose in writing to Clearview, at the time he identifies a theater or
location as a possible target/opportunity to Clearview or as promptly as
practicable thereafter if he does not know the information at such time, if
First New York pursuant to an agreement with the seller/landlord thereof or with
an agent of such person could be entitled to a fee or commission therefrom if
Clearview were to acquire the relevant fee or leasehold interest. Marks
acknowledges and agrees that he shall not be entitled to any commission or fee
from First New York with respect to any such transaction without the prior
written consent of Clearview, which may be withheld in its sole discretion.
4. FIRST NEW YORK'S COMMISSIONS ON FUTURE TRANSACTIONS. First
New York shall disclose in writing to Clearview, prior to the time that
Clearview executes any agreement to acquire a fee or leasehold interest in any
real property, if First New York believes, for any reason, that it may be
entitled to a commission or fee from the seller/landlord of such property with
respect to such transaction and the maximum amount thereof. First New York
acknowledges and agrees that it shall not be entitled to any commission or fee
with respect to any such transaction if such prior disclosure is not made and
shall only be entitled to any commission or fee with respect to any such
transaction to the extent, if any, that Clearview consents thereto in writing
prior to the execution of any such agreement. Clearview's determination with
respect to First New York's right to receive any such commission or fee shall be
solely within its discretion and may be withheld for any reason or no reason at
all.
5. REPRESENTATIONS AND WARRANTIES.
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▇. ▇▇▇▇▇ represents and warrants to Clearview and First
New York as follows:
(i) Marks is an individual resident of the State of
New York and is over twenty-one years old.
(ii) Neither this Agreement nor any of the
transactions contemplated hereby conflicts with or violates (x) any agreement by
which Marks is bound or (y) any federal, state or local law, rule or regulation
or judicial order to which Marks is subject.
b. First New York represents and warrants to Clearview
and Marks as follows:
(i) First New York is a corporation duly organized
and existing in good standing under the laws of the State of New York.
(ii) This Agreement and the transactions contemplated
hereby have been duly authorized by all necessary corporate and stockholder
action of First New York. Neither this Agreement nor any of the transactions
contemplated hereby conflicts with or violates (x) any provision of the
Certificate of Incorporation or By-laws of First New York; (y) any agreement by
which First New York, any subsidiary of First New York or any of its or their
respective properties is bound in any manner that, individually or in the
aggregate, could have a material adverse effect on the business, assets,
financial condition or results of operations of First New York and its
subsidiaries taken as a whole; or (z) any federal, state or local law, rule or
regulation or judicial order, in any manner that, individually or in the
aggregate, could have a material adverse effect on the business, assets,
financial condition or results of operations of First New York and its
subsidiaries taken as a whole. This Agreement is binding on First New York and
enforceable against First New York in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, moratorium, fraudulent transfer,
preference and other laws and equitable principles affecting the scope and
enforcement of creditors' rights generally.
(iii) No consent, approval or authorization of, or
filing, registration or qualification with, any governmental authority or any
other person on the part of First New York is required in connection with the
execution, delivery and performance of this Agreement.
c. Clearview represents and warrants to First New York and
Marks as follows:
(i) Clearview is a corporation duly organized and
existing in good standing under the laws of the State of Delaware.
(ii) This Agreement and the transactions contemplated
hereby have been duly authorized by all necessary corporate and stockholder
action of Clearview. Neither this Agreement nor any of the transactions
contemplated hereby conflicts with or violates
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(x) any provision of the Certificate of Incorporation or By-laws of Clearview;
(y) any agreement by which Clearview, any subsidiary of Clearview or any of its
or their respective properties is bound in any manner that, individually or in
the aggregate, could have a material adverse effect on the business, assets,
financial condition or results of operations of Clearview and its subsidiaries
taken as a whole; or (z) any federal, state or local law, rule or regulation or
judicial order, in any manner that, individually or in the aggregate, could have
a material adverse effect on the business, assets, financial condition or
results of operations of Clearview and its subsidiaries taken as a whole. This
Agreement is binding on Clearview and enforceable against Clearview in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, moratorium, fraudulent transfer, preference and other laws and
equitable principles affecting the scope and enforcement of creditors' rights
generally.
(iii) No consent, approval or authorization of, or
filing, registration or qualification with, any governmental authority or any
other person on the part of Clearview is required in connection with the
execution, delivery and performance of this Agreement.
6. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof. Any changes
in or additions to this Agreement may be made only upon the written consent of
all parties hereto.
7. SUCCESSORS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
8. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York without regard to any of its
principles of conflicts of laws.
9. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
CLEARVIEW CINEMA GROUP, INC.
By:
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A. ▇▇▇▇ ▇▇▇▇
President
FIRST NEW YORK REALTY CO. INC.
By:
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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