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EXHIBIT 10.24
AMENDMENT NUMBER NINE TO CONSOLIDATED, AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER NINE TO CONSOLIDATED, AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT (this "Amendment"), is entered into as of December 21, 1999,
between FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"),
with a place of business located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, MALIBU ENTERTAINMENT WORLDWIDE, INC., a
Georgia corporation ("MEWI"), with its chief executive office located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, MOUNTASIA MANAGEMENT COMPANY, a
Georgia corporation ("MMC"), with its chief executive office located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, MALIBU GRAND PRIX CORPORATION, a
Delaware corporation ("MGPC"), with its chief executive office located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, TUCSON MGPC, INC., an Arizona
corporation ("Tucson"), with its chief executive office located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, FRESNO MGPC, INC., a California
corporation ("Fresno"), with its chief executive office located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, NORTH HOLLYWOOD CASTLE MGPC, INC., a
California corporation ("NHC"), with its chief executive office located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ HILLS MGPC, INC., a
California corporation ("PH"), with its chief executive office located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ HILLS SHOWBOAT MGPC,
INC., a California corporation ("PHS"), with its chief executive office located
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, REDONDO BEACH CASTLE
MGPC, INC., a California corporation ("RBC"), with its chief executive office
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, REDWOOD CITY
CASTLE MGPC, INC., a California corporation ("RCC"), with its chief executive
office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, REDWOOD
CITY MGPC, INC., a California corporation ("RC"), with its chief executive
office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, SAN DIEGO
MGPC, INC., a California corporation ("San Diego"), with its chief executive
office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, PORTLAND
MGPC, INC., an Oregon corporation ("Portland"), with its chief executive office
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, AUSTIN MGPC,
INC., a Texas corporation ("Austin"), with its chief executive office located at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, DALLAS CASTLE MGPC, INC., a
Texas corporation ("DC"), with its chief executive office located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, SAN ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MGPC, INC., a Texas
corporation ("SAC"), with its chief executive office located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, SAN ANTONIO MGPC, INC., a Texas
corporation ("San Antonio"), with its chief executive office located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, MOUNTASIA DEVELOPMENT COMPANY, a
Georgia corporation ("MDC"), with its chief executive office located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, MALIBU GRAND PRIX DESIGN &
MANUFACTURING, INC., a California corporation ("MGPDMI"), with its chief
executive office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
MALIBU GRAND PRIX FINANCIAL SERVICES, INC., a California corporation ("MGPFSI"),
with its chief executive office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, OFF TRACK MANAGEMENT, INC., a California corporation ("Off
Track"), with its chief executive office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, MGP
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SPECIAL, INC., a California corporation ("Special"), with its chief executive
office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, AMUSEMENT
MANAGEMENT FLORIDA, INC., a Florida corporation ("Amusement"), with its chief
executive office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
MALIBU GRAND PRIX CONSULTING, INC., a California corporation ("Consulting"),
with its chief executive office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, MOUNTASIA - MEI INTERNATIONAL, INC., a Georgia corporation
("MMEII"), with its chief executive office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, MOUNTASIA - MEI LIMITED COMPANY, INC., a California
corporation ("MMEILC"), with its chief executive office located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, MOUNTASIA - MEI CALIFORNIA, INC., a
California corporation ("MCNC"), with its chief executive office located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, MOUNTASIA - MEI CALIFORNIA
LIMITED PARTNERSHIP, a California limited partnership ("MMEICLP"), with its
chief executive office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, and MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a Texas corporation
("MFEC"), with its chief executive office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Recitals:
A. Foothill and Borrower are parties to the Consolidated, Amended, and
Restated Loan and Security Agreement, entered into as of August 22, 1996,
(as amended from time to time prior to the date hereof, the "Loan
Agreement").
B. Borrower has requested Foothill (i) to amend the Loan Agreement to the
extent necessary to provide for the extension of an Overadvance to Borrower
in excess of the amount otherwise available under the terms and conditions
of the Loan Agreement in the amount of up to $4,800,000 (the "Requested
Overadvance"), which will be disbursed in stages as set forth herein.
C. Foothill is willing to so amend the Loan Agreement to extend the Requested
Overadvance to Borrower in accordance with the terms and conditions hereof.
Agreement:
NOW, THEREFORE, in consideration of the mutual promises contained herein,
Foothill and Borrower hereby agree as follows:
All capitalized terms used herein and not defined herein shall have the
meanings ascribed to them in the Loan Agreement.
1. Amendments to the Loan Agreement.
a. Section 1.1 of the Loan Agreement hereby is amended by adding
each of the following definitions in alphabetical order:
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"EBITDA" means, for any period, determined on a consolidated basis, the sum
of (a) net income (or net loss) exclusive of any reduction in the bad debt
reserves to the extent any such reduction results in an increase in net income,
(b) interest expense, (c) income tax expense, (d) depreciation expense, (e)
amortization expense, and (f) non-cash charges relating to non-recurring write
downs of furniture, fixtures and equipment and general intangibles, in each case
determined in accordance with GAAP for such period; provided, that, in
connection with any disposition of any FunCenter, required levels of EBITDA
shall be adjusted to exclude such disposed-of FunCenter, effective with the
month of disposition of such FunCenter, such adjustments to be based on the
projected levels of EBITDA for such FunCenter contained in the formal business
projections of Borrower for its fiscal year 2000 to be delivered to Foothill no
later than January 31, 2000.
"Ninth Amendment" means that certain Amendment Number Nine to Consolidated,
Amended, and Restated Loan and Security Agreement, dated as of December 21,
1999.
"Ninth Amendment Closing Date" means the date on which each of the
conditions precedent set forth in Section 3 of the Ninth Amendment are satisfied
in full.
"Permanent Reduction Date" means the date on which Borrower shall repay the
outstanding Obligations to an aggregate amount of not more than $10,000,000.
"Permitted Overadvance Amount" means: (a) on and after the Ninth Amendment
Closing Date and prior to December 29, 1999, $1,800,000 (of which $300,000
represents a ratable portion of the Permitted Overadvance Fee); (b) on and after
December 29, 1999 and prior to January 5, 2000, $2,400,000 (of which $400,000
represents a ratable portion of the Permitted Overadvance Fee); (c) on and after
January 5, 2000 and prior to January 19, 2000, $3,000,000 (of which $500,000
represents a ratable portion of the Permitted Overadvance Fee); (d) on and after
January 19, 2000 and prior to February 2, 2000, $3,600,000 (of which $600,000
represents a ratable portion of the Permitted Overadvance Fee); (e) on and after
February 2, 2000 and prior to February 16, 2000, $4,200,000 (of which $700,000
represents a ratable portion of the Permitted Overadvance Fee); (f) on and after
February 16, 2000 and prior to June 30, 1999, $4,800,000 (of which $800,000
represents a ratable portion of the Permitted Overadvance Fee); and (f) on and
after July 1, 2000, zero dollars; provided, however, that, at any time prior to
the date of the mandatory reduction in the Permitted Overadvance Amount as set
forth above, Borrower may prepay all or part of the outstanding amount of any
Overadvance without penalty (except as otherwise provided in Section 2.10(f)
with respect to the Permitted Overadvance Fee), and on and after the date of any
such prepayment, the Permitted Overadvance Amount shall be permanently reduced
by an amount equal to any such prepayment amount.
"Required Pay-Down Date" means June 30, 2000, or, if Borrower shall have
entered into binding agreements for Permitted Dispositions of Collateral, in
each instance satisfactory to Foothill in its reasonable discretion (including,
without limitation, providing for the payment to Borrower or into escrow in
connection therewith of ▇▇▇▇▇▇▇ money (in the form of cash deposits or an
equivalent acceptable to Foothill refundable only on conditions reasonably
acceptable to Foothill) in an amount equal to or greater than 5% of the gross
sales price of the Collateral subject thereto) and in an aggregate amount
sufficient to reduce the aggregate amount
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of the Obligations outstanding to not more than $10,000,000 on or before August
31, 2000, then August 31, 2000.
b. Section 1.1 of the Loan Agreement hereby is amended by deleting
each of the following definitions in their entirety and
substituting the following in lieu thereof:
"Required Amount" means the greater of (i) an amount equal to 75% of the
Net Cash Proceeds received by Borrower in connection with such Permitted
Disposition, (ii) an amount equal to 125% of the net book value (as of the most
recently completed fiscal quarter) of the Equipment or Real Property that is the
subject of such Permitted Disposition, or (iii) if the Equipment or Real
Property that is the subject of the Permitted Disposition is a FunCenter or
other operating unit of Borrower, an amount equal to 3 times the Operating Cash
Flow (prior to any overhead allocation and for the 12 months ended as of
Borrower's most recently completed fiscal quarter) of such FunCenter or other
operating unit (or such other lesser amount as shall be consented to by Foothill
in writing in connection therewith); provided, however, that anything contained
in the forgoing to the contrary notwithstanding, (a) the Required Amount in
connection with the Permitted Disposition of Borrower's FunCenter located in
Redwood City, California shall be equal to or greater than $6,000,000; (b) the
Required Amount in connection with the Permitted Disposition of Borrower's
FunCenter known as Miami Castle shall be equal to or greater than $4,149,000;
(c) the Required Amount in connection with the Permitted Disposition of
Borrower's FunCenter known as Columbus MEI shall be equal to or greater than
$1,870,500; (d) the Required Amount in connection with the Permitted Disposition
of Borrower's FunCenter known as Atlanta Speedzone shall be equal to or greater
than $2,909,500; (e) the Required Amount in connection with the Permitted
Disposition of Borrower's FunCenter known as Spartanburg MEI shall be equal to
or greater than $523,000; (f) the Required Amount in connection with the
Permitted Disposition of Borrower's FunCenter known as Tampa Complex shall be
equal to or greater than $2,344,500; (g) the Required Amount in connection with
the Permitted Disposition of Borrower's Real Property known as Arlington raw
land shall be equal to or greater than $725,500; (h) the Required Amount in
connection with the Permitted Disposition of Borrower's Real Property known as
Charlotte raw land shall be equal to or greater than $530,000; and (i) the
aggregate minimum combined Required Amounts for the properties covered by
clauses (b) through (h), inclusive, above, shall be equal to or greater than
$13,052,000.
"Term Loans" shall mean Term Loan A.
c. Section 1.1 of the Loan Agreement hereby is amended by deleting
each of the following definitions in their entirety:
"Average Unused Portion of the Term Loan A Commitment"
"Term Loan A Commitment"
"Term Loan A Repayment Date"
"Term Loan ▇"
▇
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"Term Loan B Commitment"
d. Subsections 2.1(a) and (b) of the Loan Agreement hereby are
amended and restated in their entirety, and a new subsection (d)
is hereby added to Section 2.1 of the Loan agreement, as follows:
2.1 ADVANCES.
(a) Subject to the terms and conditions of this Agreement, Foothill agrees
to make advances ("Advances") to Borrower in an amount at any one time
outstanding not to exceed the Maximum Revolving Amount plus the then applicable
Permitted Overadvance Amount.
(b) Amounts borrowed pursuant to this Section 2.1 may be repaid at any time
without penalty. Once repaid, Advances may not be reborrowed.
(c) From and after the Ninth Amendment Closing Date and until June 30,
2000, subject to the terms and conditions of this Agreement, Foothill commits to
make Overadvances to Borrower at any time up to the Permitted Overadvance Amount
in the aggregate, which Overadvances shall be funded automatically as they
become available (e.g. $1,500,000 of cash plus $300,000 of related accrued fee
on the Ninth Amendment Closing Date, $500,000 of cash plus $100,000 of related
accrued fee on December 29, 1999, etc.).
e. Section 2.2 of the Loan Agreement hereby is amended and restated
in its entirety as follows:
2.2 TERM LOAN. (a) On the Closing Date, a portion of the Existing Loans
shall be converted into a term loan (the "Term Loan A") in the original
principal amount of $12,500,000. The outstanding principal balance and all
accrued and unpaid interest under Term Loan A shall be due and payable upon the
earlier of (i) the Maturity Date, or (ii) the date of termination of this
Agreement, whether by its terms, by prepayment, by acceleration, or otherwise.
The unpaid principal balance of Term Loan A may be prepaid in whole or in part
without penalty or premium (except to the extent, if any, that the Exit Fee or
Early Termination Premium may be applicable) at any time during the term of this
Agreement upon 15 days prior written notice by Borrower to Foothill; provided,
however, that, any prepayment of Term Loan A shall be deemed to constitute and
shall result in a permanent reduction of the principal amount of Term Loan A.
All amounts outstanding under Term Loan A shall constitute Obligations.
f. Section 2.3 of the Loan Agreement hereby is amended and restated
in its entirety as follows:
2.3 [INTENTIONALLY OMITTED.]
g. Section 2.4 of the Loan Agreement hereby is amended and restated
in its entirety as follows:
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2.4 OVERADVANCES. If, at any time or for any reason, the amount of
Obligations owed by Borrower to Foothill pursuant to Section 2.1 is greater than
the Dollar limitations set forth in Section 2.1 less (without duplication) any
applicable reserves (any such excess, an "Overadvance") by an amount greater
than the then applicable Permitted Overadvance Amount, Borrower immediately
shall pay to Foothill, in cash, the amount of such excess to be used by Foothill
to repay Advances outstanding under Section 2.1.
h. Subsections 2.5(a), (b), and (c) of the Loan Agreement hereby are
amended and restated in their entirety as follows:
2.5 INTEREST: RATES, PAYMENTS, AND CALCULATIONS.
(a) Interest Rate. Except as provided in clause (b) below, (i) prior to the
Permanent Reduction Date, all Obligations shall bear interest at a per annum
rate of 3.0 percentage points above the Reference Rate, and (ii) on and after
the Permanent Reduction Date, all Obligations shall bear interest at a per annum
rate of 2.0 percentage points above the Reference Rate.
(b) Default Rate. From and after and during the continuation of an Event of
Default, all Obligations shall bear interest at a per annum rate equal to 6.0
percentage points above the Reference Rate.
(c) Minimum Interest. In no event shall the rate of interest chargeable
hereunder for any day be less than 8.5% per annum. To the extent that interest
accrued hereunder at the rate set forth herein would be less than the foregoing
minimum daily rate, the interest rate chargeable hereunder for such day
automatically shall be deemed increased to the minimum rate.
i. Subsections 2.10(b) and (c) of the Loan Agreement hereby are
amended and restated in their entirety as follows:
(b) [Intentionally omitted.]
(c) Unused Commitment Fee. On the first day of each month during the term
of this Agreement, an unused commitment fee in an amount equal to 0.5% per annum
times the Average Unused Portion of the Maximum Revolving Amount (provided that
this fee does not apply with respect to any Overadvance);
j. Section 2.10 of the Loan Agreement hereby is amended by deleting
the "and" at the end of existing subsection (d), replacing the
period at the end of existing subsection (e) with "; and" and
amending and restating existing subsection (f) in its entirety as
follows:
(f) Permitted Overadvance Fee: In connection with the Ninth Amendment, a
fee of $800,000 shall be payable by Borrower to Foothill as follows: On the
Ninth Amendment Closing Date, $300,000 of such fee shall accrue and be charged
to Borrower's Loan Account. On December 29, 1999, $100,000 of such fee shall
accrue and be charged to Borrower's Loan Account. On January 5, 2000, $100,000
of such fee shall accrue and be charged to Borrower's
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Loan Account. On January 19, 2000, $100,000 of such fee shall accrue and be
charged to Borrower's Loan Account. On February 2, 2000, $100,000 of such fee
shall accrue and be charged to Borrower's Loan Account. On February 16, 2000,
$100,000 of such fee shall accrue and be charged to Borrower's Loan Account. The
foregoing notwithstanding, the entire $800,000 of such fee shall be fully earned
and non-refundable as of the Ninth Amendment Closing Date without regard to
whether Borrower ever fully utilizes the entire Overadvance provided for by the
Ninth Amendment. In the event of any termination of this Agreement prior to the
date that the full amount of such fee has accrued as set forth above, or in the
event that the maturity of the Obligations is accelerated or the Obligations are
prepaid in full prior to the date that the full amount of such fee has accrued
as set forth above, then, in any such event, the full amount of such fee
immediately shall accrue and shall be due and payable on such date.
k. Section 2.12 of the Loan Agreement hereby is amended and restated
in its entirety as follows:
2.12 MANDATORY PREPAYMENTS AND COMMITMENT REDUCTIONS.
(a) On or before the Required Pay-Down Date, Borrower shall:
(i) repay the Permitted Overadvance Amount outstanding as of the date
of any such repayment from the Net Cash Proceeds of any Permitted
Dispositions of the Collateral in an amount equal to the Required Amount
applicable thereto, and the amount so prepaid shall permanently reduce the
Permitted Overadvance Amount; and
(ii) if the Permitted Overadvance Amount has been repaid in full
pursuant to clause (i) above, repay Term Loan A from the Net Cash Proceeds of
any Permitted Dispositions of the Collateral in an amount equal to the
Required Amount applicable thereto (or the balance remaining after the
repayment of the Permitted Overadvance Amount pursuant to clause (i) above,
as applicable) sufficient to reduce the aggregate amount of the Obligations
outstanding to not more than $10,000,000, and the amount so prepaid shall
permanently reduce Term Loan A; and
(iii) if the Permitted Overadvance Amount and Term Loan A have been
repaid or prepaid in full pursuant to clauses (i) and (ii) above and the
aggregate amount of the Obligations outstanding remains in excess of
$10,000,000, then repay the Advances made by Foothill to Borrower under
Section 2.1 from the Net Cash Proceeds of any such Permitted Dispositions of
the Collateral in an amount equal to the Required Amount applicable thereto
(or the balance remaining after the prepayment of the Permitted Overadvance
Amount and Term Loan A pursuant to clauses (i) and (ii) above) sufficient to
reduce the aggregate amount of the Obligations outstanding to not more than
$10,000,000, and the amount so prepaid automatically shall permanently reduce
the Maximum Revolving Amount, on a dollar-for-dollar basis.
(b) Thereafter, immediately upon receipt by Borrower of Net Cash Proceeds
of any Permitted Disposition (other than an Ordinary Course Disposition),
Borrower shall:
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(i) prepay the Permitted Overadvance Amount outstanding (if any) as of
the date of any such repayment in an amount equal to the Required Amount
applicable to such Permitted Disposition and the amount so prepaid shall
permanently reduce the Permitted Overadvance Amount; and
(ii) if the Permitted Overadvance Amount outstanding (if any) has been
repaid in full pursuant to clause (i) above or otherwise, prepay Term Loan A
in an amount equal to the Required Amount applicable to such Permitted
Disposition (or the balance remaining after the repayment of the Permitted
Overadvance Amount outstanding pursuant to clause (i) above, as applicable)
and the amount so prepaid shall permanently reduce Term Loan A; and
(iii) if the Permitted Overadvance Amount outstanding (if any) and
Term Loan A have been repaid or prepaid in full pursuant to clauses (i) and
(ii) above, prepay the Advances made by Foothill to Borrower under Section
2.1 in an amount equal to the Required Amount applicable to such Permitted
Disposition (or the balance remaining after the prepayment of the Permitted
Overadvance Amount outstanding and Term Loan A pursuant to clauses (i) and
(ii) above, as applicable), and the amount so prepaid automatically shall
permanently reduce the Maximum Revolving Amount, on a dollar-for-dollar
basis.
(c) On the date on which the remaining aggregate amount of the Obligations
outstanding, after giving effect to any repayments or prepayments made in
accordance with this Section 2.12 or otherwise, shall be $3,750,000 or less,
then Borrower shall repay the entire remaining outstanding amount of the
Obligations in full, in cash.
l. Section 3.2 of the Loan Agreement hereby is amended and restated
in its entirety as follows:
3.2 [INTENTIONALLY OMITTED.]
m. Section 3.9 of the Loan Agreement hereby is amended and restated
in its entirety as follows:
3.9 [INTENTIONALLY OMITTED.]
n. The following new Section 6.16 hereby inserted in its entirety
immediately following existing Section 6.15 of the Loan
Agreement:
6.16 ENVIRONMENTAL TESTING. At any time that Borrower elects to obtain
same, Borrower shall deliver updated phase-I environmental reports and real
estate surveys to Foothill with respect to the Real Property Collateral or any
portion thereof. Once a year, at Borrower's expense, Foothill may cause its
environmental consultant to review any environmental reports, records or real
estate surveys held by Borrower with respect to the Real Property Collateral or
any portion thereof, to advise Foothill of their contents or adequacy.
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o. The following new subsection 7.19(e) hereby inserted in its
entirety immediately following existing subsection 7.19(d) of the
Loan Agreement:
(e) Minimum EBITDA. EBITDA, on a consolidated basis, as of the last day of
each Relevant Measuring Period most recently ended of not less than the relevant
amount set forth in the following table, measured on a fiscal quarter-end basis:
Period Ending Minimum EBITDA
------------- --------------
6/30/2000 and each period thereafter To be determined by Foothill on or before
2/28/2000 on the basis of Borrower's
projections to be delivered
to Foothill on or before 1/31/2000.
2. Condition to the Effectiveness of this Amendment. The effectiveness of
this Amendment is subject to the fulfillment, to the satisfaction of Foothill
and its counsel, of each of the following conditions (except for (b), which, if
not fulfilled by the date required below, shall result in an Event of Default),
each of which (except for (b)) is a condition precedent:
a. Foothill shall have received the portion of the Permitted
Overadvance fee that accrues on the Ninth Amendment Closing Date
(which may be effected by charging Borrower's Loan Account, which
Borrower hereby authorizes).
b. Within 30 days after the Ninth Amendment Closing Date, Foothill,
Borrower, and all other necessary Persons shall have entered into
bailee agreements together with any such other documents,
instruments, financing statements and agreements as Foothill
shall require to evidence Foothill's security interest in
Borrower's thirty five (35) Top Eliminator lanes currently
located in the State of Utah, or wherever elsewhere located.
c. On or before the date hereof, Foothill shall have received a
certificate of the Assistant Secretary of Borrower attesting to
the resolutions of Borrower's Board of Directors authorizing the
execution, delivery, and performance of the Loan Agreement as
amended by this Amendment and authorizing the specific officers
of Borrower to execute same, the failure of Borrower to deliver
such certificate shall constitute and Event of Default under the
Loan Agreement;
d. The representations and warranties in this Amendment, the
Agreement as amended by this Amendment, and the other Loan
Documents shall be true and correct in all respects on and as of
the
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date hereof as though made on such date (except to the extent
that such representations and warranties relate solely to an
earlier date);
e. After giving effect hereto, no Event of Default or event which
with the giving of notice or passage of time would constitute an
Event of Default shall have occurred and be continuing on the
date hereof, nor shall result from the consummation of the
transactions contemplated herein;
f. No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation of
the transactions contemplated herein shall have been issued and
remain in force by any governmental authority against Borrower,
Foothill, or any of their Affiliates;
g. No material adverse change shall have occurred in the financial
condition of Borrower or in the value of the Collateral that has
not been disclosed to Foothill;
h. SZ Capital shall have funded the remainder of its commitment
(approximately $1,300,000) to purchase shares of preferred stock
of MEWI; and
i. All other documents and legal matters in connection with the
transactions contemplated by this Amendment shall have been
delivered, executed or recorded, as applicable, and shall be in
form and substance satisfactory to Foothill and its counsel.
3. Representations and Warranties. Borrower hereby represents and warrants
to Foothill that (a) the execution, delivery, and performance of this Amendment
are within its corporate powers, have been duly authorized by all necessary
corporate action, and are not in contravention of any law, rule, or regulation,
or any order, judgment, decree, writ, injunction, or award of any arbitrator,
court, or governments authority, or of the terms of its charter or bylaws, or of
any contract or undertaking to which it is a party or by which any of its
properties may be bound or affected, and (b) the Loan Agreement, as amended by
this Amendment, constitutes Borrower's legal, valid, and binding obligation,
enforceable against Borrower in accordance with its terms.
4. Further Assurances. Borrower shall execute and deliver all financing
statements, agreements, documents, and instruments, in form and substance
satisfactory to Foothill, and take all actions as Foothill may reasonably
request from time to time, to perfect and maintain the perfection and priority
of Foothill's security interests in the Collateral, and to fully consummate the
transactions contemplated under the Loan Agreement and this Amendment.
5. Effect on Loan Documents. The Loan Agreement, as amended hereby, and the
other Loan Documents shall be and remain in full force and effect in accordance
with their respective terms and each hereby is ratified and confirmed in all
respects. Except as expressly set
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forth herein, the execution, delivery, and performance of this Amendment shall
not operate as a waiver of or as an amendment of any right, power, or remedy of
Foothill under the Loan Agreement, as in effect prior to the date hereof.
6. Miscellaneous.
a. Upon the effectiveness of this Amendment, each reference in the
Loan Agreement to "this Agreement", "hereunder", "herein",
"hereof" or words of like import referring to the Loan Agreement
shall mean and refer to the Loan Agreement as amended by the
First Amendment, the Second Amendment, the Third Amendment, the
Fourth Amendment, the Fifth Amendment, the Sixth Amendment,
Seventh Amendment and this Amendment.
b. Upon the effectiveness of this Amendment, each reference in the
Loan Documents to the "Loan Agreement", "thereunder", "therein",
'thereof" or words of like import referring to the Loan Agreement
shall mean and refer to the Loan Agreement as amended by the
First Amendment, the Second Amendment, the Third Amendment, the
Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the
Seventh Amendment, and this Amendment.
c. This Amendment shall be governed by and construed in accordance
with the laws of the State of California.
d. This Amendment may be executed in any number of counterparts and
by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original,
and all of which, when taken together, shall constitute but one
and the same Amendment. Delivery of an executed counterpart of
this Amendment by telefacsimile shall be equally as effective as
delivery of an original executed counterpart of this Amendment.
Any party delivering an executed counterpart of this Amendment by
telefacsimile also shall deliver an original executed counterpart
of this Amendment but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed on the date first written above.
MALIBU ENTERTAINMENT WORLDWIDE, INC., a Georgia corporation
MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a Texas corporation
MOUNTASIA MANAGEMENT COMPANY, a Georgia corporation
MALIBU GRAND PRIX CORPORATION, a Delaware corporation
TUCSON MGPC, INC., an Arizona corporation
FRESNO MGPC, INC., a California corporation
NORTH HOLLYWOOD CASTLE MGPC, INC., a California corporation
▇▇▇▇▇▇ HILLS MGPC, INC., a California corporation
▇▇▇▇▇▇ HILLS SHOWBOAT MGPC, INC., a California corporation
REDONDO REACH CASTLE MGPC, INC., a California corporation
REDWOOD CITY CASTLE MGPC, INC., a California corporation
REDWOOD CITY MGPC, INC., a California corporation
SAN DIEGO MGPC, INC., a California corporation
PORTLAND MGPC, INC., an Oregon corporation
AUSTIN MGPC, INC., a Texas corporation
DALLAS CASTLE MGPC, INC., a Texas corporation
SAN ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MGPC, INC., a Texas corporation
SAN ANTONIO MGPC, INC., a Texas corporation
MOUNTASIA DEVELOPMENT COMPANY, a Georgia corporation
MALIBU GRAND PRIX DESIGN & MANUFACTURING, INC., a California corporation
MALIBU GRAND PRIX FINANCIAL SERVICES, INC., a California corporation
OFF TRACK MANAGEMENT, INC., a California corporation
MGP SPECIAL, INC., a California corporation
AMUSEMENT MANAGEMENT FLORIDA, INC., a Florida corporation
MALIBU GRAND PRIX CONSULTING, INC., a California corporation
MOUNTASIA - MEI INTERNATIONAL, INC., a Georgia corporation
MOUNTASIA - MEI LIMITED COMPANY, INC., a California corporation
MOUNTASIA - MEI CALIFORNIA, INC., a California corporation
MOUNTASIA - MEI INTERNATIONAL, INC., a Georgia corporation, in its capacity as
general partner of MOUNTASIA - MEI CALIFORNIA LIMITED PARTNERSHIP, a
California limited partnership
By:
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Name:
Title:
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
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Name:
Title:
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