Exhibit 10.65
WAIVER AND CONSENT
July 1, 1997
Reference is made to that certain Credit Agreement, dated as of May 29,
1996, as amended prior to the date hereof (the "Credit Agreement"), among
The Provident Bank ("Provident"), as Agent, Clearview Cinema Group, Inc.
("CCC"), its various subsidiaries, and Provident, as lender, that certain
Subordination Agreement dated December 13, 1996 (the "Magic Cinemas
Subordination Agreement") among CCC, Provident and Magic Cinemas, L.L.C.
and that certain Subordination Agreement, dated as of May 29, 1996, as
amended (the "CMNY Subordination Agreement"), among CCC, Provident, CMNY
Capital II, L.P. ("CMNY"), CMCO, Inc. ("CMCO"), and Xxxxxx X. Xxxxxxxx
("Davidoff"). The Credit Agreement, the Magic Cinemas Subordination
Agreement, and the CMNY Subordination Agreement are referred to herein
collectively as the "Subject Agreements." Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in the
Credit Agreement.
CCC has requested that Provident consent to and waive any default under
the Subject Agreements resulting from, certain actions taken and to be
taken by CCC and Provident has agreed to do so to the extent expressly set
forth in this Waiver and Consent.
1. Provident hereby waives any obligation of CCC pursuant to Section
2.6(g) of the Credit Agreement to pay or prepay the Loans from the
proceeds, after payment of the underwriters' discounts and
commissions and the expenses of the sale (the "Net Proceeds"), from
the sale of shares of its common stock, $.01 par value (the
"Shares"), pursuant to a registration statement (the "Registration
Statement"), originally filed by CCC with the Securities and
Exchange Commission on May 27, 1997; provided, however, that if CCC
or its subsidiaries shall not have consummated the United Artists
Transaction (as defined in Section 3 hereof) prior to the end of
the period (the "Waiver Period") beginning on the date of the
consummation of such sale of the Shares and ending on a date ninety
calendar days therafter, CCC shall immediately prepay the Loans
from the Net Proceeds less any amounts paid by CCC to retire the
Magic Cinemas Note as permitted by Section 4 hereof.
2. Provident hereby waives any obligation of CCC to pay or prepay Term
Loan C from the Net Proceeds or other funds of CCC pursuant to
clause (ii) of the second sentence of Section 2.6(1) of the Credit
Agreement.
3. Provident hereby consents to, and waives any default under the
Credit Agreement resulting from, the use of the Net Proceeds and
other funds of CCC at any time during the Waiver Period by certain
subsidiaries of CCC to purchase various assets related to the
operation of up to five movie theaters from United Artists Theatre
Circuit, Inc., United Artists Properties I Corp., and/or Mamaroneck
Playhouse Holding Corporation (the purchase of one or more such
theaters, the "United Artists Transaction").
4. Provident hereby consents to, and waives any default under the
Subject Agreements resulting from, the use by CCC of the Net
Proceeds or other funds of CCC at any time during the Waiver Period
to pay the outstanding principal and interest due under the
Subordinated Promissory Note dated December 13, 1996 in the
original principal amount of $600,000 issued by CCC to Magic
Cinemas, L.L.C. (the "Magic Cinemas Note").
5. Provident hereby consents to, and waives any default under the
Subject Agreements resulting from, the use by CCC of the Net
Proceeds or other funds of CCC at any time during the Waiver Period
to pay the outstanding principal and interest due under the 8%
Subordinated Promissory Note dated August 31, 1995 in the original
principal amount of $300,000 issued by CCC to CMNY, the 8%
Subordinated Promissory Note dated August 31, 1995 in the original
principal amount of $50,000 issued by CCC to CMCO, the 8%
Subordinated Promissory Note dated August 31, 1995 in the original
principal amount of $50,000 issued by CCC to Davidoff, the 8%
Subordinated Promissory Note dated October 11, 1995 in the original
principal amount of $50,000 issued by CCC to CMCO, the 8%
Subordinated Promissory Note dated October 11, 1995 in the original
principal amount of $50,000 issued by CCC to Davidoff, the 8%
Subordinated Promissory Note dated December 13, 1996 in the
original principal amount of $300,000 issued by CCC to CMCO, and
the 8% Subordinated Promissory Note dated December 13, 1996 in the
original principal amount of $300,000 issued by CCC to Davidoff.
6. Provident hereby consents to, and waives any default under the
Credit Agreement resulting from, the acquisition by any
underwriters of the Shares solely in connection with the sale
contemplated by the Registration Statement.
7. Provident hereby consents to, and waives any default under the
Credit Agreement resulting from, CCC (for all purposes of the
Credit Agreement) treating the rights of certain holders of its
preferred stock, $0.1 par value, and of its common stock, $.01 par
value, which require CCC to purchase the stock of such
stockholders, as if such rights did not or do not exist.
8. Provident hereby consents to, and waives any default under the
Credit Agreement resulting from, the existence of, and the issuance
of options pursuant to, the Clearview Cinema Group, Inc. 1997 Stock
Incentive Plan but not to any amendments, modifications or
restatements thereof after the Waiver Period.
9. Provident hereby consents to, and waives any default under the
Credit Agreement resulting from, CCC's entering into and performing
under a consulting agreement with MidMark Capital, L.P.
("MidMark"), replacing the Management and Monitoring Agreement
dated as of May 29, 1996 (the "Existing Management Agreement")
between CCC and MidMark.
10. Provident hereby consents to, and waives any default under the
Credit Agreement resulting from, CCC's entering into and performing
under a consulting and confidentiality agreement with Xxxxx Xxxxx
("Marks"), pursuant to which Marks will
assist CCC in the identification of possible locations for the
development of theaters and perform other services as requested by
CCC.
11. Provident hereby consents to, and waives any default under the
Credit Agreement resulting from, CCC's entering into and performing
under an agreement with Marks and First New York Realty Co. Inc.
("First New York") concerning the payment of commissions to First
New York as a result of services of Marks to CCC.
12. Provident hereby consents to, and waives any default under the
Credit Agreement resulting from, CCC's amending and restating its
Certificate of Incorporation in a form substantially similar to the
Amended and Restated Certificate of Incorporation of Clearview
Cinema Group, Inc. attached hereto as Exhibit A.
13. Provident hereby consents to, and waives any default under the
Credit Agreement resulting from, the issuance by CCC of a stock
dividend to the holders of its common stock in connection with the
Registration.
14. Provident hereby consents to, and waives any default under the
Credit Agreement resulting from, CCC's amending and restating its
Bylaws in a form substantially similar to the Amended and Restated
By-laws of Clearview Cinema Group, Inc. attached hereto as Exhibit
B.
15. Provident hereby consents to, and waives any default under the
Subject Agreements resulting from, CCC's entering into and
performing under the Addenda to 8% Subordinated Promissory Notes,
each substantially in the form attached hereto as Exhibit C.
16. Provident hereby consents to, and waives any default under the
Subject Agreements resulting from, CCC's entering into and
performing under the Exchange and Termination Agreement dated as of
May 23, 1997 among CCC, CMNY, CMCO, and Davidoff.
17. Provident hereby consents to, and waives any default under the
Subject Agreement resulting from, CCC's entering into and
performing under the Exchange and Termination Agreement dated as of
May 23, 1997, among CCC, MidMark, and A. Xxxx Xxxx.
18. Provident hereby waives any default under the Credit Agreement
resulting from CCC's failure to meet the financial covenants set
forth in Article 7 of the Credit Agreement.
This Waiver and Consent applies only to the extent described and does not
otherwise modify or waive any other covenant or agreement contained in any
of the Subject Agreements. This Waiver and Consent shall not modify or
waive any covenant or agreement to be contained in the Amended and Restated
Credit Agreement which may be entered into among CCC, its subsidiaries and
Provident.
IN WITNESS WHEREOF, The Provident Bank has executed this Waiver and Consent
as of the date first set forth above.
THE PROVIDENT BANK
BY: ------------------------
Xxxxxxxxxxx X. Xxxxxxx
Assistant Vice President
