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EXHIBIT 10.14
THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), SHALL HAVE BECOME EFFECTIVE WITH RESPECT
THERETO OR (ii) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE SECURITIES
ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER NOR IS SUCH
TRANSFER IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL
BE ENDORSED UPON ANY NOTE ISSUED IN EXCHANGE FOR THIS NOTE.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE COMPANY AND PAYEE HEREUNDER ARE
SUBJECT TO THE SUBORDINATION PROVISIONS SET FORTH IN SECTION 2 HEREOF. IN THE
EVENT OF A CONFLICT BETWEEN ANY TERMS OF THIS NOTE AND THE TERMS OF SUCH SECTION
2, THE TERMS OF SECTION 2 SHALL GOVERN.
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CROWNBOOKS.COM
No. $
------ ---------
SUBORDINATED NOTE
Crownbooks.com, a Delaware corporation (the "Company"), for value
received, hereby promises to pay to the order of ____________ (the "Payee") on
December __, 2002 (the "Maturity Date") at the offices of the Company, the
principal sum of _____________________ Dollars ($__________) (the "Principal
Amount"). Each payment by the Company pursuant to this Note shall be made,
without set-off or counterclaim and each cash payment shall be made in lawful
currency of the United States of America and in immediately available funds.
Interest on this Note shall accrue on the Principal Amount outstanding from time
to time at a rate per annum computed in accordance with Section 3 hereof,
provided, that after the Maturity Date, the rate of interest applicable to the
unpaid Principal Amount shall be 2% in excess of that otherwise applicable
pursuant to Section 3 of this Note, but in no event in excess of the Maximum
Rate provided in Section 3B of this Note.
Accrued and unpaid interest shall be payable (i) semi-annually on
June 30 and December 31, (ii) upon maturity (whether at the Maturity Date, by
acceleration or otherwise), (iii) upon any prepayment, on the amount prepaid and
(iv) after maturity until paid in full (after as well as before judgment), on
demand. Each of the dates referred to in clauses (i), (ii), (iii), and (iv) is
sometimes hereinafter referred to as an "Interest Payment Date." All
computations of interest hereunder shall be made based on the actual number of
days elapsed in a year of 360 days (including the first day but excluding the
last day during which any such Principal Amount is outstanding). The Principal
Amount of this Note together with interest accrued and unpaid thereon shall be
payable on the Maturity Date.
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Subject to the terms of this paragraph, the Company may, in its
sole discretion, issue Secondary Notes (as hereinafter defined) in lieu of a
cash payment of any or all of the interest due on any Interest Payment Date. If
the Company elects to issue Secondary Notes in lieu of a cash payment of any or
all of the interest due on any Interest Payment Date pursuant to the immediately
preceding sentence, it shall issue to the Payee an additional Note (the
"Secondary Note"), dated the date of such Interest Payment Date, in a principal
amount equal to the amount of cash interest due but not paid on such Interest
Payment Date, and the issuance of such Secondary Note shall constitute full
payment of such interest; provided that no Secondary Note shall be issued in
principal amounts other than an integral multiple of $1,000. The terms of each
such Secondary Note shall be identical to the terms of this Note (except, as the
case may be, with respect to title and aggregate principal amount). In lieu of
the issuance of any Secondary Note the principal amount of which would be less
than $1,000 or would exceed the largest integral multiple of $1,000 which is
less than such principal amount (in each case, a "Fractional Secondary Note"),
the Company shall issue a Secondary Note with a principal amount equal to such
largest integral multiple and shall pay each such Payee, with respect to any
Fractional Secondary Note that such Payee would otherwise be entitled to
receive, an amount in cash equal to the principal amount of such Fractional
Secondary Note. The term "Notes" shall include the Secondary Notes that may be
issued in accordance with this paragraph.
The amount of all repayments of principal, interest rates
applicable thereto and interest accrued thereon shall be recorded on the records
of the Payee and, prior to any transfer of, or any action to collect, this Note
shall be endorsed on this Note. Any such recordation or endorsement shall
constitute prima facie evidence of the accuracy of the information so recorded
or endorsed, but the failure to record any such amount or rate shall not limit
or otherwise affect the obligations of the Company hereunder to make payments of
principal or interest when due. All payments by the Company hereunder shall be
applied first to pay any interest which is due, but unpaid, then to reduce the
Principal Amount.
The Company (i) waives presentment, demand, protest or notice of
any kind in connection with this Note and (ii) agrees to pay to the holder
hereof, on demand, all costs and expenses (including reasonable legal fees and
expenses) incurred in connection with the enforcement and collection or this
Note.
This Note is issued in connection with a private placement of
Notes (the "Private Placement"), the terms of which are more fully set forth in
the Confidential Term Sheet dated December 14, 1999 (the "Term Sheet"), and
pursuant to a Subscription Agreement, between Crown Books Corporation, a
Delaware corporation ("Crown Books"), the Company (a wholly-owned subsidiary of
Crown Books), and the Payee (the "Subscription Agreement"), a copy of which
agreement is available for inspection at the Company's principal office.
Notwithstanding any provision to the contrary contained herein, this Note is
subject and entitled to certain terms, conditions, covenants and agreements
contained in the Subscription Agreement. Any transferee of this Note, by its
acceptance hereof, assumes the obligations of the Payee in the Subscription
Agreement with respect to the conditions and procedures for transfer of this
Note. Reference to the Subscription Agreement shall in no way impair the
absolute and unconditional obligation of the Company to pay both principal
hereof and interest hereon as provided herein.
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1. Prepayment
A. The Principal Amount of this Note may be prepaid, in
whole or in part, without penalty, at any time upon 10 business days' prior
written notice (the "Prepayment Notice") to the Payee. Principal Amounts repaid
may not be reborrowed.
2. Subordination. The Company, for itself, its successors and
assigns, covenants and agrees, and the Payee and each successive holder of this
Note, by its acceptance of this Note, likewise covenants and agrees (expressly
for the benefit of the present and future holders of the Senior Debt (as
hereinafter defined)), that the payment of principal of, and interest on, this
Note is hereby expressly subordinated in right of payment to the prior payment
in full of the principal of, premium (if any) and interest on, all Senior Debt
of the Company (other than the Notes), whether outstanding on the date hereof or
hereafter incurred or created. "Senior Debt" means, collectively, (i) all
Indebtedness for Borrowed Money (and all renewals, extensions, refundings,
amendments and modifications of any such Indebtedness for Borrowed Money); and
(ii) all payment obligations of the Company pursuant to any capitalized lease
with an entity that is not an affiliate of the Company, unless by the terms of
the instrument creating or evidencing any such indebtedness it is expressly
provided that such indebtedness is not superior in right of payment to the
Notes.
"Indebtedness for Borrowed Money" means (i) all payment
obligations of the Company to a bank, insurance company, finance company or
other institutional lender or other entity regularly engaged in the business of
extending credit in the form of borrowed money, provided such entity is not an
affiliate of the Company (each of the foregoing, an "Institutional Lender") in
respect of extensions of credit to the Company and (ii) all obligations,
contingent or otherwise, relative to the face amount of all letters of credit,
whether or not drawn, and banker's acceptances, in each case issued for the
account of the Company (other than such as may be for the benefit of an
affiliate of the Company).
The provisions of this Section 2 are not for the benefit of the
Company, but are solely for the purpose of defining the relative rights of the
holders of the Senior Debt, on the one hand, and the holders of the Notes, on
the other hand. Nothing contained herein (i) shall impair, as between the
Company and the holder of this Note, the obligations of the Company, which are
absolute and unconditional, to pay to the holder hereof all amounts payable in
respect of this Note as and when the same shall become due and payable in
accordance with the terms hereof or (ii) is intended to or shall affect the
relative rights of the holder of this Note and the creditors of the Company, or
(iii) shall prevent the holder of this Note from exercising all rights, powers
and remedies otherwise permitted by applicable law or upon a default or Event of
Default under this Note as set forth in these subordination provisions.
3. Computation of Interest.
A. Base Interest Rate. Subject to subsections B below,
the outstanding Principal Amount shall bear interest at the rate of six percent
(6%) per annum.
B. Maximum Rate. In the event that it is determined
that, under the laws relating to usury applicable to the Company or the
indebtedness evidenced by this Note
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("Applicable Usury Laws"), the interest charges and fees payable by the Company
in connection herewith or in connection with any other document or instrument
executed and delivered in connection herewith cause the effective interest rate
applicable to the indebtedness evidenced by this Note to exceed the maximum rate
allowed by law (the "Maximum Rate"), then such interest shall be recalculated
for the period in question and any excess over the Maximum Rate paid with
respect to such period shall be credited, without further agreement or notice,
to the Principal Amount outstanding hereunder to reduce said balance by such
amount with the same force and effect as though the Company had specifically
designated such extra sums to be so applied to principal and the Payee had
agreed to accept such extra payment(s) as a premium-free prepayment. All such
deemed prepayments shall be applied to the principal balance payable at
maturity. In no event shall any agreed-to or actual exaction as consideration
for this Note exceed the limits imposed or provided by Applicable Usury Laws in
the jurisdiction in which the Company is resident applicable to the use or
detention of money or to forbearance in seeking its collection in the
jurisdiction in which the Company is resident.
4. Covenants of Company
A. Affirmative Covenants. The Company covenants and
agrees that, so long as this Note shall be outstanding, it will perform the
obligations set forth in this Section 4A:
(i) Taxes and Levies. The Company will file when
due all federal, state and local income tax returns and will promptly pay and
discharge all taxes, assessments, and governmental charges or levies imposed
upon the Company or upon its income and profits, or upon any of its property,
before the same shall become delinquent, except where the failure to file and/or
make payment would not have a material adverse effect on the Company, as well as
all claims for labor, materials and supplies which, if unpaid, might become a
lien or charge upon any material properties or any material part thereof,
provided, however, that the Company shall not be required to pay and discharge
any such tax, assessment, charge, levy or claim so long as the validity thereof
shall be contested in good faith by appropriate proceedings and the Company
shall set aside on its books adequate reserves in accordance with generally
accepted accounting principles ("GAAP") with respect to any such tax,
assessment, charge, levy or claim so contested;
(ii) Maintenance of Existence. The Company will do
or cause to be done all things reasonably necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises and comply with
all laws applicable to the Company, except where the failure to comply would not
have a material adverse effect on the Company;
(iii) Maintenance of Property. The Company will
maintain, preserve, protect and keep its material property used or useful in the
conduct of its business in good repair, working order and condition, and from
time to time make all needful and proper repairs, renewals, replacements and
improvements thereto as shall be reasonably required in the conduct of its
business;
(iv) Insurance. The Company will, to the extent
reasonably necessary for the operation of its business, keep adequately insured
by financially sound
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reputable insurers, all property of a character usually insured by similar
corporations and carry such other insurance as is usually carried by similar
corporations;
(v) Books and Records. The Company will at all
times keep true and correct in all material respects books, records and accounts
reflecting its business affairs and transactions in accordance with GAAP. Such
books and records shall be open at reasonable times and upon reasonable notice
to the inspection of the Payee or its agents;
(vi) Notice of Certain Events. The Company will
give prompt written notice (with a description in reasonable detail) to the
Payee of
(a) the occurrence of any Event of Default
or any event which, with the giving of notice or the lapse of
time, would constitute an Event of Default;
(b) the occurrence of any litigation,
arbitration or governmental investigation or proceeding not
previously disclosed by the Company to the Payee in writing which
has been instituted or, to the knowledge of the Company, is
threatened, against the Company or to which any of its properties,
assets or revenues is subject which, if adversely determined,
would reasonably be expected to have a material adverse effect on
the Company;
(c) the occurrence of any event of default
or any event which, with the giving of notice or the lapse of
time, would constitute an event of default under any document or
instrument evidencing or governing any indebtedness of the Company
in the principal amount exceeding $1,000,000 and the delivery of
any notice effecting the acceleration of any such indebtedness;
(d) any material development which shall
occur in any litigation, arbitration or governmental investigation
or proceeding previously disclosed by the Company to the Payee;
and
(e) the occurrence of any other
circumstance which has a reasonable likelihood of having a
material adverse effect on the Company;
(vii) Compliance with Laws. The Company will comply
in all material respects with all applicable federal, state and local laws,
rules, regulations and orders.
B. Negative Covenants. The Company covenants and agrees
that, so long as this Note shall be outstanding, it will perform the obligations
set forth in this Section 4B:
(i) Liquidation, Dissolution. The Company will
not liquidate or dissolve, consolidate with, or merge into or with, any other
corporation or other entity;
(ii) Sales of Assets. The Company will not sell,
transfer, lease or otherwise dispose of, or grant options, warrants or other
rights with respect to, all or substantially all of its properties or assets to
any person or entity, provided that this clause (ii) shall not restrict any
disposition made to an entity which has a tangible net worth equal to or
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greater than the Company's at the time of transfer and such entity assumes the
obligations under the Notes;
(iii) Liens. The Company will not create, incur,
assume or suffer to exist any mortgage, pledge, hypothecation, assignment,
security interest, encumbrance, lien (statutory or other), preference, priority
or other security agreement or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention agreement
and any financing lease) (each, a "Lien") upon any of its property, revenues or
assets, whether now owned or hereafter acquired, except:
(a) Liens granted to secure Indebtedness
for Borrowed Money or indebtedness incurred to finance the
acquisition (whether by purchase or capitalized lease) of assets,
but only on the assets acquired with the proceeds of such
indebtedness;
(b) Liens for taxes, assessments or other
governmental charges or levies not at the time delinquent or
thereafter payable without penalty or being contested in good
faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on its books;
(c) Liens of carriers, warehousemen,
mechanics, materialmen and landlords incurred in the ordinary
course of business (i) for sums not overdue or being contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its
books or (ii) relating to property of the Company which is not
material in value or is not material to the conduct of the
business of the Company;
(d) Liens (other than Liens arising under
the Employee Retirement Income Security Act of 1974, as amended,
or Section 412(n) of the Internal Revenue Code of 1986, as
amended) incurred in the ordinary course of business in connection
with workers' compensation, unemployment insurance or other forms
of governmental insurance or benefits, or to secure performance of
tenders, statutory obligations, leases and contracts (other than
for borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds; and
(e) judgment Liens which, to the extent
not covered by insurance, do not exceed $250,000 or which are in
existence less than 30 days after the entry thereof or with
respect to which execution has been stayed.
(iv) Redemptions. The Company will not redeem or
repurchase any outstanding equity securities of the Company, except for (A)
repurchases of unvested or restricted shares of Common Stock at cost from
employees, consultants or members of the Board of Directors pursuant to
repurchase options of the Company currently outstanding or hereafter entered
into pursuant to a stock option plan or restricted stock plan approved by the
Company's
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Board of Directors or (B) rescission offers necessary or appropriate to address
violations of applicable securities laws;
(v) Transactions with Affiliates. The Company
will not enter into any transaction, including, without limitation, the
purchase, sale, lease or exchange of property, real or personal, or the
rendering of any service, with any person or entity affiliated with the Company,
except for (i) transactions with the Company's parent, Crown Books Corporation,
and (ii) transactions on terms not less favorable than would be obtained in a
comparable arms-length transaction with any other person or entity not
affiliated with the Company;
(vi) Indebtedness. The Company will not create,
incur, assume or suffer to exist, contingently or otherwise, any indebtedness if
such indebtedness at the time of incurrence would render the Company unable to
pay its debts as they become due.
5. Events of Default
A. The term "Event of Default" shall mean any of the
events set forth in this Section 5A:
(i) Non-Payment of Obligations. The Company shall
default in the payment of principal on this Note when and as the same shall
become due and payable, whether by acceleration or otherwise or, within 10
business days of its becoming due, accrued interest on this Note;
(ii) Non-Performance of Affirmative Covenants. The
Company shall default in the due observance or performance of any covenant set
forth in Section 4A, which default shall continue uncured for 10 business days
after it has been discovered;
(iii) Non-Performance of Negative Covenants. The
Company shall default in the due observance or performance of any covenant set
forth in Section 4B;
(iv) Non-Performance of Other Obligations. The
Company shall default in the due observance or performance of any material
agreement applicable to the Company to be observed or performed pursuant to the
terms hereof, which default shall continue uncured for 10 business days after
written notice thereof specifying such default shall have been given to the
Company by the holder of this Note (or its agent);
(v) Bankruptcy, Insolvency etc. The Company
shall:
(a) become insolvent or generally fail or
be unable to pay, or admit in writing its inability to pay, its
debts as they become due;
(b) apply for, consent to, or acquiesce
in, the appointment of a trustee, receiver, sequestrator or other
custodian for the Company or any of its property, or make a
general assignment for the benefit of creditors;
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(c) in the absence of such application,
consent or acquiesce in, permit or suffer to exist the appointment
of a trustee, receiver, sequestrator or other custodian for the
Company or for any part of its property, and such trustee,
receiver, sequestrator or other custodian shall not be discharged
within 30 days; or
(d) permit or suffer to exist the
commencement of any bankruptcy, reorganization, debt arrangement
or other case or proceeding under any bankruptcy or insolvency
law, or any dissolution, winding up or liquidation proceeding, in
respect of the Company and, if such case or proceeding is not
commenced by the Company or converted to a voluntary case, such
case or proceeding shall be consented to or acquiesced in by the
Company or shall result in the entry of an order for relief or
shall remain for 60 days undismissed.
(vi) Cross-Acceleration. Any indebtedness for
borrowed money of the Company or any subsidiary in an aggregate principal amount
exceeding $1,000,000 (1) shall be duly declared to be or shall become due and
payable prior to the stated maturity thereof, or (2) shall not be paid as and
when the same becomes due and payable, including any applicable grace period.
(vii) Judgments. A judgment which, with other such
outstanding judgments against the Company and its subsidiaries (in each case to
the extent not covered by insurance), exceeds an aggregate of $250,000, shall be
rendered against the Company or any subsidiary and, within 30 days after entry
thereof, such judgment shall not have been vacated, discharged or otherwise
satisfied or execution thereof stayed pending appeal, or, within 30 days after
the expiration of any such stay, such judgment shall not have been discharged or
otherwise satisfied.
B. Action if Bankruptcy. If any Event of Default
described in clauses (v)(a) through (d) of Section 5A shall occur, the
outstanding Principal Amount of this Note and a other obligations hereunder
shall automatically be and become immediately due and payable, without notice or
demand.
C. Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (v)(a) through (d)
of Section 5A) shall occur for any reason, whether voluntary or involuntary, and
be continuing, the Required Holders may, upon notice to the Company, declare all
or any portion of the outstanding Principal Amount of this Note, together with
interest accrued thereon to be due and payable and any or all other obligations
hereunder to be due and payable, whereupon the full unpaid Principal Amount (or
any portion thereof so demanded), such accrued interest and any and all other
such obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand, or presentment.
D. Remedies. Subject to the provisions of Section 5C
and 6A hereof, in case any Event of Default shall occur and be continuing, the
holders of not less than 25% of the outstanding aggregate Principal Amount of
the Notes may proceed to protect and enforce its rights by a proceeding seeking
the specific performance of any covenant or agreement contained
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in this Note or in aid of the exercise of any power granted in this Note or may
proceed to enforce the payment of this Note or to enforce any other legal or
equitable rights as such holder shall determine.
6. Amendments and Waivers.
A. Waivers, Amendments, etc. (i) The provisions of this
Note may from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the Company and the
holders of not less than 50% in principal amount of the Notes (the "Required
Holders"); provided, however, that no such amendment, modification or waiver:
(a) which would modify this Section 6A,
change the definition of "Required Holders", extend the Maturity
Date for more than 90 days, or subject the Payee under each Note
to any additional obligations shall be made without the consent of
the Payee of each Note, or
(b) which would reduce the amount of any
payment or prepayment of principal of or interest on any Principal
Amount payable hereunder (or reduce the Principal Amount of or
rate of interest payable hereunder) shall be made without the
consent of the holder of each Note so affected.
(ii) No failure or delay on the part of the Payee
in exercising any power or right under this Note shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on the Company in any case shall entitle
it to any notice or demand in similar or other circumstances. No waiver or
approval by the Payee shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
(iii) To the extent that the Company makes a
payment or payments to the Payee, and such payment or payments or any part
thereof are subsequently for any reason invalidated, set aside and/or required
to be repaid to a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all rights and remedies therefor, shall be revived and continued in full
force and effect as if such payment had not been made or such enforcement or
setoff had not occurred.
(iv) After any waiver, amendment or supplement
under this section becomes effective, the Company shall mail to the holders of
the Notes a copy thereof
7. Miscellaneous
A. Registered Holder. The Company may consider and
treat the person in whose name this Note shall be registered as the absolute
owner thereof for all purposes whatsoever (whether or not this Note shall be
overdue) and the Company shall not be affected by
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any notice to the contrary. In case of transfer of this Note by operation of
law, the transferee agrees to notify the Company of such transfer and of its
address, and to submit appropriate evidence regarding such transfer so that this
Note may be registered in the name of the transferee. This Note is transferable
only on the books of the Company by the holder hereof, in person or by attorney,
on the surrender hereof, duly endorsed. Communications sent to any registered
owner shall be effective as against all holders or transferees of the Note not
registered at the time of sending the communication.
B. Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York. Sections 5-1401
and 5-1402 of the General Obligations Law of the State of New York shall apply
to this Note and the Company hereby waives any right to stay or dismiss on the
basis of forum non conveniens any action or proceeding brought before the courts
of the State of New York sitting in New York County or of United States of
America for the Southern District of New York and hereby submits to the
jurisdiction of such courts.
C. Notices. All notices required or permitted under
this Note shall be given in accordance with the Subscription Agreement.
D. Waiver of Jury Trial. THE PAYEE AND THE COMPANY
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS NOTE OR ANY OTHER DOCUMENT OR INSTRUMENT
EXECUTED AND DELIVERED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE PAYEE OR
THE COMPANY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PAYEE'S PURCHASING
THIS NOTE.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
in its name by its duly authorized officer.
CROWNBOOKS.COM
By:
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Name:
Title:
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