Exhibit 10.27
LOAN PURCHASE CONTRACT
THIS LOAN PURCHASE CONTRACT (the "CONTRACT"), is entered into as of the
7th day of September, 2001 (the "EFFECTIVE Date") by and between FOOTHILL
CAPITAL CORPORATION, a California corporation (the "SELLER") and OLD HILL
PARTNERS, INC., a Delaware corporation (the "PURCHASER"). For good and valuable
consideration, the receipt and sufficiency of which are acknowledged by Seller
and Purchaser, and in consideration of the mutual covenants set forth in this
Contract, Seller and Purchaser hereby agree as follows:
1. Sale and Purchase.
(a) Seller agrees to sell, convey, transfer and assign to Purchaser,
and Purchaser agrees to purchase and accept from Seller, for the Purchase Price
(as hereinafter defined), on and subject to the terms and conditions set forth
in this Contract, all right, title and interest in and to, and does hereby
delegate its obligations in respect of, each of the following:
(1) That certain Consolidated, Amended, and Restated Loan
and Security Agreement dated as of August 22, 1996, by and
between Seller and Mountasia Entertainment International, Inc.
(now known as Malibu Entertainment Worldwide, Inc.) and
forty-five of its direct and indirect subsidiaries identified
therein, together with the exhibits and schedules thereto (as
amended, extended and modified, the "LOAN AGREEMENT"). All
initially capitalized terms not defined herein shall have the
respective meanings ascribed thereto in the Loan Agreement. For
purposes of this Contract, Malibu Entertainment Worldwide, Inc.
("MALIBU") and any of its subsidiaries and its affiliates who are
or may be indebted or obligated in any manner under the Loan
Agreement or any of the other Loan Documents (as hereinafter
defined) shall be referred to as the "OBLIGORS";
(2) Those certain deeds of trust, leasehold deeds of trust,
and mortgages (collectively, and as amended, extended and
modified, the "MORTGAGES") described in the attached Exhibit A;
(3) Those certain pledges of capital stock (as amended,
extended and modified, the "STOCK PLEDGES"), together with all
stock certificates and stock powers delivered in connection
therewith and relating thereto, all as more particularly
described in the attached Exhibit A;
(4) Those certain trademark security agreements and/or
collateral assignment documents (as amended, extended and
modified, the "SECURITY AGREEMENTS") described in the attached
Exhibit A;
(5) Those certain collateral loan documents (as amended,
extended and modified, the "COLLATERAL LOAN DOCUMENTS") described
in the attached Exhibit A;
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(6) Any and all blocked bank deposit accounts, other bank deposit
accounts or assignable utility, escrow, security, damage, lease, tax
insurance or any other deposits of an Obligor (collectively, the
"DEPOSITS");
(7) Any other Collateral not otherwise described above;
(8) All other principal obligations that the Loan Agreement,
Mortgages, Stock Pledges, Security Agreements, Collateral Loan Documents,
Deposits, any of the Additional Loan Documents (as hereinafter defined) or
other items secure, including, without limitation, any right of Seller to
make one or more new, additional or future loans to any of the Obligors and
to obtain or receive retroactive rank on such liens and security interests
with respect to such new, additional or future loans; and
(9) All other instruments, agreements or documents of any kind
affecting or relating to the Loan or any of the Properties (as hereinafter
defined), or executed in connection with or as security for the Loan,
including but not limited to any and all guarantees, security agreements,
indemnities, collateral assignments, UCC-1 financing statements and
continuation statements and amendments and assignments thereof, pledge
agreements, financial statements, operating reports, appraisals, analyses,
site plans, surveys, soil and substrata studies, plans and specifications,
engineering plans and studies, title insurance commitments policies,
environmental site assessments or reports, modification agreements, renewal
or extension agreements, assignments of rents, assignments of leases,
assumption agreements, intercreditor agreements, consents to conveyances
and applications for such consents, copies of any and all leases and
subleases covering or affecting any of the Properties, and any attornment,
subordination, or nondisturbance agreements with tenants or subtenants,
boundary line agreements, judgments, court orders or decrees declaring or
otherwise relating to the ownership, use, possession or boundary lines of
any of the Properties, encroachment agreements, laborer's or materialmen's
lien claim notices, lien affidavits, closing and disbursement statements,
casualty and liability insurance policies, endorsements and certificates,
property tax bills and receipts, correspondence with taxing authorities,
licenses, building or other permits, certificates of occupancy, demolition
permits, construction contracts, and payment and performance bonds, and any
other information gathered by Seller in connection with Seller's decision
to make the Loan or obtained or created by, or provided to Seller, during
Seller's ownership of the Loan (collectively, the "ADDITIONAL LOAN
DOCUMENTS"). The tracts of land and/or the locations identified and
described on the attached Exhibit B are hereinafter collectively called the
"PROPERTIES".
(b) All of the instruments and documents described or referred
to in Section 1(a) above are collectively called the "LOAN DOCUMENTS." The
indebtedness evidenced by the Loan Agreement and the other Loan Documents are
hereinafter collectively called the "LOAN." The Seller's interest in and rights
under the Loan and the Loan Documents shall be conveyed, assigned and
transferred to Purchaser at the Closing (as hereinafter defined), without
recourse to Seller (except with respect to the representations and warranties
set forth in Section 10 below), free and clear of all liens, encumbrances,
defenses, charges, security interests, rights of offset, deductions or other
claims of whatever nature.
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(c) Retained Rights. The foregoing to the contrary notwithstanding,
the following rights and claims shall belong to and be retained by Seller and
shall not be transferred to Purchaser pursuant to this Contract: any and all
payments made to Seller by an Obligor on or before the Closing Date (as defined
below).
2. Assumption. For and in consideration of the transfer of rights by Seller
set forth in Section 1 hereof and the other consideration set forth herein, and
effective as of the Effective Date, Purchaser does hereby accept the foregoing
assignment of rights and delegation of obligations, and does hereby assume and
covenant and agree fully, completely and timely to perform, comply with and
discharge, each and all of the obligations, duties, liabilities, obligations and
responsibilities of every type and nature whatsoever and howsoever arising under
or as a result of the Loan Documents. From and after the Effective Date:
Purchaser shall be bound as a party to the Loan Documents and by the obligations
of Seller thereunder to the fullest extent permitted under the applicable Loan
Documents, and (b) Seller shall be released from Seller's obligations under the
Loan Agreement and the other Loan Documents.
3. Credit Determination: Limitations on Seller's Liability. It is
understood and agreed that Purchaser has independently made its own credit
determinations and analysis based upon such information as Purchaser deems
sufficient to enter into the transaction contemplated hereby and not based on
any statements or representations by Seller that it will, independently and
without reliance upon Seller and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Agreement. It is understood and
agreed that the assignment and assumption hereunder are made WITHOUT RECOURSE
to Seller and that Seller makes no representation or warranty of any kind to
Purchaser and shall not be responsible for (except as set forth in Section 10
below) (a) due execution, legality, validity, enforceability, genuineness,
sufficiency, value or collectability of the Loan Agreement or any other Loan
Document, including without limitation, documents granting the Seller a
security interest in assets of the Obligors, (b) any representation, warranty
or statement made in or in connection with any of the Loan documents, (c) the
financial condition or creditworthiness of the Obligors, (d) the performance
or compliance with any of the terms or provisions of any of the Loan Documents,
(e) inspecting any of the property, books or records of the Obligors or (f) the
validity, enforceability, perfection, priority, condition, value or sufficiency
of any collateral securing or purporting to securing or purporting to secure
the Loans. Neither Seller nor any of its officers, directors, employees, agents
or attorneys shall be liable for any mistake, error of judgment, or action
taken or omitted to be taken in connection with the Loans or the Loan
Documents, except for its or their own gross negligence or willful misconduct.
4. Purchase Price.
(a) The Purchase Price (the "PURCHASE PRICE") to be paid by Purchaser
to Seller for the Loan is Eleven Million Seven Hundred Fifty Thousand and
No/100 Dollars ($11,750,000.00). Seller hereby expressly agrees that it shall
accept the Purchase Price in full satisfaction of any and all amounts or
charges (including but not limited to principal payments, interest payments,
costs, expensed, and fees or charges of any type or character, including but
not limited to exit fees, forbearance fees or any other fees) due and payable,
or to become due and payable (but which have not been paid prior to the Closing
Date), to Seller by the Obligors, or
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any of them, under the Loan Agreement and/or any other Loan Document on or
after the Closing Date (as hereinafter defined). Without limiting the
generality of the foregoing, Seller and Purchaser agree that the Purchase Price
shall be deemed to include all interest, fees, and any other amounts of any
kind or nature due and payable by Obligors to Seller under the Loan Agreement
through the Closing Date (other than the Fifteenth Amendment Fee required by
the Amendment (as hereinafter defined), which Fifteenth Amendment Fee shall be
paid by the Obligors as set forth in the Amendment, all amounts previously paid
by the Obligors to the Seller prior to the Closing Date, and the fees, costs
and expenses described in Section 7(b)(3) of this Contract), and that there
shall be no proration of interest between Seller and Purchaser with respect to
the month in which the Closing Date occurs.
(b) The Purchase Price shall be payable in cash at the Closing,
(c) (Intentionally Omitted)
5. (Intentionally Omitted)
6. (Intentionally Omitted)
7. Closing and Post-Closing.
(a) The Closing ("CLOSING") of the sale of the Loan by Seller to
Purchaser shall occur in Dallas, Texas (or at such other location as may be
mutually agreed upon by Seller and Purchaser) on or before September 7, 2001
(the "CLOSING DATE"). Notwithstanding anything contained in this Section 7, if
Seller delays its performance of an obligation required under this Contract
which is a condition to Purchaser's obligations, the Closing Date shall be
extended, at Purchaser's option (in addition to and without waiver of any other
right or remedy provided to Purchaser under this Contract), for the number of
days the performance of such obligation were delayed.
(b) At the Closing, all of the following shall occur, all of
which shall be deemed concurrent conditions:
(1) Seller, at Seller's sole cost and expense, shall deliver
or cause to be delivered to Purchaser the following:
(i) The originals of the Loan Documents, each of which
shall be transferred and assigned to Purchaser in accordance with
the terms thereof and in a manner that shall be satisfactory to
Purchaser in Purchaser's sole good faith discretion and that shall
transfer at Closing all of Seller's rights, title and interest, in
to and under the Loan Documents; provided however that in any event
(A) such Loan Documents and Loans will be sold by Seller and
purchased by Purchaser on an "as is" basis, and (B) all assignments
of the Loan and the Loan Documents by Seller shall be made "without
recourse" to the Seller;
(ii) All escrows, if any, held by Seller and any
account records reflecting amounts held in escrow by the Seller on
the Closing Date of whatever kind or character relating to the
Loan;
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(iii) An estoppel certificate (the "SELLER'S ESTOPPEL
CERTIFICATE") for the loan, in the form attached hereto as Exhibit C,
dated as of the Closing Date and fully executed by the Seller, which
shall certify, among other things, the amount of the outstanding
principal balance of the Loan as of the Closing Date;
(iv) A Borrower's Estoppel Certificate executed by
Malibu in the form attached hereto as Exhibit D; and
(v) Evidence satisfactory to Purchaser or Xxxxxxx
Title North Texas in Dallas, Texas (the "TITLE COMPANY") that the
person executing any documents at the Closing on behalf of Seller has
full right, power and authority to do so.
(2) Purchaser, at Purchaser's sole cost and expense, shall
deliver or cause to be delivered to Seller the following:
(i) A wire transfer of immediately available federal
funds or such other means of funding reasonably acceptable to Seller
in an amount of money equal to the Purchase Price; and
(ii) Evidence satisfactory to Seller and the Title
Company that the person executing any documents at the Closing on
behalf of Purchaser has full right, power and authority to do so.
(3) Seller and Purchaser shall each pay their respective
attorneys' fees incurred in connection with the negotiation of this
Contract and the Closing, and shall each pay one-half (1/2) of any escrow
fee, recording fees, and documentary stamp or transfer taxes charged in
connection with this Contract or the transactions contemplated hereunder.
Other Closing costs will be allocated between Purchaser and Seller in the
same manner as closing costs are customarily allocated between the
purchaser and seller of commercial real estate in a transaction occurring
in Los Angeles, California; provided, however, that Obligors shall pay to
Seller, on or before the Closing Date, in full in cash, an amount equal to
the aggregate amount of all fees, costs and expenses described in this
subsection 7(b)(3) which are incurred by Seller.
(c) As soon as possible following the Closing Date (and in any event
no later than forty-five (45) days following the Closing Date), the following
shall occur, all of which shall be obligations of Seller that may be enforced by
Purchaser through the remedy of specific performance (without waiving any other
remedies or rights that Purchaser may have in the event Seller fails to perform
such obligations):
(1) Seller, at Seller's sole cost and expense, shall deliver or
cause to be delivered to Purchaser those executed UCC Assignments (as
defined below) that Seller was unable to deliver at Closing; and
(2) Seller, at Seller's sole cost and expense, shall deliver or
cause to be delivered to Purchaser those executed Mortgage Assignments (as
defined below) that Seller was unable to deliver at Closing.
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8. Conditions to Performance by Purchaser.
(a) Purchaser's obligations under this Contract shall be contingent
and specifically conditioned until the Closing upon the following matters:
(1) All of the representations and warranties of Seller set forth
in this Contract shall be true and correct at and as of the Closing in all
respects, as though such representations and warranties were made at and as
of the Closing;
(2) Seller shall have delivered, performed, observed and complied
with all of the items, instruments, documents, covenants, agreements and
conditions required by this Contract to be delivered, performed, observed
and complied with by Seller prior to or as of the Closing;
(3) Seller shall not be in receivership or dissolution, nor have
made any assignment for the benefit of creditors, nor admitted in writing
its inability to pay its debts as they mature, nor have been adjudicated a
bankrupt, nor have filed a petition in voluntary bankruptcy, a petition or
answer seeking reorganization or an arrangement with creditors under the
federal bankruptcy law or any other similar law or statute of the United
States of America or any state, nor shall any such petition have been filed
against it; and
(4) That certain Amendment Number Fifteen to Consolidated,
Amended and Restated Loan and Security Agreement (the "AMENDMENT") shall
have been executed by Seller and the Obligors and shall have been delivered
by Seller and the Obligors to the Title Company to hold in escrow pending
the Closing, and the Obligors shall have consented in writing to the
purchase of the Loan and the Loan Documents by Purchaser, which consent
shall be evidenced by the Obligors' execution of this Contract. Purchaser
has reviewed and is familiar with the terms, conditions and provisions of
the Amendment and the side letter between Obligors and Seller dated as of
the date of this Contract (the "SIDE LETTER"), and hereby consents to the
Amendment and the Side Letter and the execution thereof. Seller and
Purchaser hereby agree that anything contained in this Contract and the
Amendment to the contrary notwithstanding, all fees payable by Seller under
the terms of the Amendment shall be paid by Purchaser, and all fees payable
to Seller under the terms of the Amendment shall be paid to Purchaser.
(b) Any of the conditions set forth in Section 8(a), other than the
conditions set forth in Section 8(a)(4), may be waived, in writing, in whole or
in part, by Purchaser, in Purchaser's sole discretion, at or prior to the
Closing. If any of such conditions is not satisfied or waived, without limiting
the provisions of this Section 8, Purchaser may terminate this Contract by
giving written notice to Seller prior to or at the Closing, whereupon neither
party shall have any further rights, duties or obligations under this Contract.
9. Conditions to Performance by Seller.
(a) Seller's obligations under this Contract shall be contingent and
specifically conditioned until the Closing upon the following matters:
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(1) All of the representations and warranties of Purchaser set
forth in this Contract shall be true and correct at and as of the Closing
in all respects, as though such representations and warranties were made at
and as of the Closing;
(2) Purchaser shall have delivered, performed, observed and
complied with all of the items, instruments, documents, covenants,
agreements and conditions required by this Contract to be delivered,
performed, observed and complied with by Purchaser prior to or as of the
Closing;
(3) Purchaser shall not be in receivership or dissolution, nor
have made any assignment for the benefit of creditors, nor admitted in
writing its inability to pay its debts as they mature, nor have been
adjudicated a bankrupt, nor have filed a petition in voluntary bankruptcy,
a petition or answer seeking reorganization or an arrangement with
creditors under the federal bankruptcy law or any other similar law or
statute of the United States of America or any state, nor shall any such
petition have been filed against it;
(4) Each Obligor shall have executed and delivered to Seller that
certain Termination Agreement and Release, date as of even date herewith,
which shall be in form and substance acceptable to Seller; and
(5) Seller shall have received the payments from the Obligors
that are required pursuant to subsection 7(b)(3) of this Contract.
(b) Any of the conditions set forth in Section 9(a) may be waived, in
writing, in whole or in part, by Seller, in Seller's sole discretion, at or
prior to the Closing. If any of such conditions is not satisfied or waived,
without limiting the provisions of this Section 9, Seller may terminate this
Contract by giving written notice to Purchaser prior to or at the Closing,
whereupon neither party shall have any further rights, duties or obligations
under this Contract.
10. Seller's Covenants, Agreements, Representations and Warranties.
(a) Seller covenants and agrees with, and represents and warrants to,
Purchaser that:
(1) Seller shall deliver to Purchaser each of the following as
soon as reasonably practicable but in no event later than 45 days after the
Closing Date:
(i) Assignments of UCC-1 financing statements/UCC-3
financing statement change forms pertaining to the Loan (the "UCC
ASSIGNMENTS") in the form required in each jurisdiction in which the
applicable UCC financing statements were filed and sufficient to
transfer to Purchaser all financing statements relating to the Loan;
and
(ii) Executed assignments of the Mortgages (the
"MORTGAGE ASSIGNMENTS") in the form required for recordation in each
jurisdiction in which the applicable Mortgages were filed and
sufficient to transfer to Purchaser all of Seller's rights, titles and
interests in, to and under the Mortgages;
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(2) Seller is the sole legal and beneficial owner and holder of
the Loan and the rights granted by an Obligor pursuant to the Loan Documents,
free and clear of any liens, assessments or claims (the "ENCUMBRANCES"). At the
Closing, Purchaser will acquire title to the Loan and the rights granted by an
Obligor pursuant to the Loan Documents, free and clear of any and all
Encumbrances;
(3) The information set forth in the Seller's Estoppel
Certificate to be delivered at Closing and dated as of the Closing Date shall
be true and correct;
(4) Other than any Events of Default that have been waived in
writing by Seller pursuant to (a) Loan Documents that have been provided or
disclosed to Purchaser by Seller, (b) the Amendment, or (c) the other agreements
executed in connection with this Contract, there are to Seller's knowledge no
material Events of Default under the Loan Agreement; as used in this Contract,
the phrase "to Seller's knowledge" means solely the current actual knowledge of
Xxxx Xxxxxx and other persons currently working with or for Xxxx Xxxxxx in the
Atlanta, Georgia office of Seller (but not including any constructive or imputed
notice of any information), without any independent investigation of any kind;
(5) Other than (a) the Loan Documents provided or disclosed to
Purchaser by Seller, (b) the Amendment, and (c) the other agreements executed
in connection with this Contract, to Seller's knowledge, as of the Closing
Date, there are no other agreements among Seller and the Obligors that
materially impair the ability of Purchaser to liquidate the Collateral or which
materially alter the terms of the Loan Agreement;
(6) Seller has the right, power, legal capacity and authority to
execute and deliver this Contract and to consummate the transactions
contemplated by the Contract. This Contract has been duly and validly executed
and delivered by Seller, constitutes the valid, legal and binding agreement of
Seller and is enforceable against Seller in accordance with its terms;
(7) Seller has delivered to Purchaser for review and purchase
true, correct and complete copies (or originals where requested by Purchaser)
of all the Loan Documents. Any other information, reports, statements and other
data pertaining to the Loan Documents and furnished by or on behalf of Seller
prior to or contemporaneously with the execution of this Contract are and shall
be true, correct and complete and do not and shall not omit to state any fact
or circumstance necessary to make the information contained therein not
misleading;
(8) The execution, delivery, and performance of this Contract
and the endorsement and delivery of the Loans do not and will not contravene or
violate any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect and applicable to Seller, or result
in a breach of, or constitute a default (with or without the giving of notice
or the lapse of time or both) under any indenture or any loan, credit or other
agreement to which Seller is a party or by which Seller or its property may be
bound or affected;
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(9) Prior to Closing, Seller shall obtain any written consents
and approvals as may be necessary or required to permit Seller to perform
Seller's obligations under this Contract;
(10) Seller is a California corporation duly organized under the
laws of the State of California and is currently in good standing in all
jurisdiction where it is qualified to conduct business;
(11) The individual or individuals executing this Contract and
any and all documents contemplated herein on behalf of Seller has or have
the legal power, right and actual authority to bind Seller to the terms and
conditions in the Contract and in those documents;
(12) No permission, approval or consent of any person, entities
or governmental authorities is required for Seller to enter into this
Contract or to consummate this Contract, except the consent of Malibu for
the sale of the Loan and the Loan Documents; and
(13) No representation, warranty, or statement of Seller in this
Contract or in any document, certificate, or schedule furnished, to be
furnished, or to be available to Purchaser pursuant to this Contract
contains any misleading statements or facts or omits to state a material
fact necessary to make the statements or facts contained herein or therein
not misleading. All such representations, warranties or statements of
Seller are based, to the best of Seller's knowledge, upon current, accurate
and complete information as of the time of their making, and there has
been, to Seller's knowledge, no material adverse change in such information
subsequent thereto.
(b) The representations, warranties and covenants of Seller set forth
in this Section 10 and elsewhere in this Contract shall be subject to the
following terms and conditions:
(1) The representations, warranties and covenants of Seller
shall be deemed to be made both as of the Effective Date and as of the
Closing, except to the extent that Seller otherwise notifies Purchaser in
writing at or prior to Closing. If Seller does so notify Purchaser in
writing at or prior to Closing, or if Purchaser discovers independently,
that any of such representations, warranties and covenants is no longer
true, Purchaser shall have the option either to (i) terminate this Contract
by written notice to Seller, whereupon neither party shall have any further
rights, duties or obligations under the Contract, or (ii) waive such
representation, warranty or covenant and close the purchase of the Loans;
(2) No investigation or inspection by Purchaser or Purchaser's
representatives shall be deemed to have in any way diminished or waived the
representations, warranties and covenants of Seller set forth in this
Contract, unless Purchaser shall have acknowledged actual knowledge of such
matters in writing prior to the Closing.
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11. Purchaser's Covenants, Agreements, Representation and Warranties.
(a) Purchaser covenants and agrees with, and represents and warrants
to, Seller that:
(1) Purchaser has the right, power, legal capacity and
authority to execute and deliver this Contract and to consummate the
transactions contemplated by the Contract. This Contract has been duly and
validly executed and delivered by Purchaser constitutes the valid, legal
and binding agreement of Purchaser and is enforceable against Purchaser in
accordance with its terms;
(2) The execution, delivery, and performance of this
Contract do not and will not contravene or violate any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award presently in effect and applicable to Purchaser, or result in a
breach of, or constitute a default (with or without the giving of notice
or the lapse of time or both) under any indenture or any loan, credit or
other agreement to which Purchaser is a party or by which Purchaser or its
property may be bound or affected;
(3) Purchaser shall not institute or take any action
(including any judicial action or proceeding) in the name of Seller or any
subsidiary or affiliate of Seller, provided that Purchaser shall advise
each Obligor and any other parties to the Loan Documents whose
notification is required pursuant to the terms of the Loan Documents, and
may advise any other third parties, of the assignment of the Loans
and the Loan Documents and that Purchaser is the assignee of Seller with
respect thereto and shall also specify Purchaser's notice/contact
information in accordance with the Loan Documents; from and after the
Closing Date, Purchaser shall not mislead the Obligors as to Purchaser's
identity and shall promptly disclose in writing to Obligors that Purchaser
has become the owner of the Loans and the assignee of the Loan Documents;
(4) Purchaser is a Delaware corporation duly organized
under the laws of Delaware and is currently in good standing in all
jurisdictions where it is qualified to conduct business;
(5) The individual or individuals executing this Contract
and any and all documents contemplated herein on behalf of Purchaser has
or have the legal power, right and actual authority to bind Purchaser to
the terms and conditions in the Contract and in those documents; and
(6) No permission, approval or consent of any person,
entities or governmental authorities is required for Purchaser to enter
into this Contract or to consummate this Contract, except the consent of
Malibu for the sale of the Loan and the Loan Documents.
12. Agents. Any broker, agent or finder (the "AGENT") engaged by either
party to this Contract shall be paid by the party engaging such Agent when the
Closing occurs, with such payment to be made in accordance with the terms and
conditions of a separate agreement by and between the Agent and the party
engaging such Agent. Purchaser shall indemnify, defend and hold harmless
Seller against all claims, liabilities, costs, damages and expenses of any
nature arising out of any claim, demand or liability to or asserted by any
Agent, licensed or otherwise,
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claiming to have acted on behalf of or to have dealt with Purchaser in
connection with the transactions contemplated by this Contract. Seller shall
indemnify, defend and hold harmless Purchaser against all claims, liabilities,
costs, damages and expenses of any nature arising out of any claim, demand or
liability to or asserted by any Agent, licensed or otherwise, claiming to have
acted on behalf of or to have dealt with Seller in connection with the
transactions contemplated by this Contract. The provisions of this Section 12
shall survive the Closing and any termination of this Contract.
13. Seller to Forward Certain Documents. After the Closing Date, Seller
will promptly forward to Purchaser within three (3) days after the Seller's
receipt thereof any payments and copies of any correspondence received by
Seller in connection with the Loan or any of the Loan Documents. Any checks
received by Seller after the Closing Date and representing payments under or in
connection with the Loan or any of the Loan Documents shall be endorsed by
Seller to Purchaser without recourse and promptly delivered to Purchaser in
accordance with the immediately preceding sentence.
14. Notices. All notices required or delivered pursuant to the terms
hereof shall be delivered to the appropriate party, at the address shown below,
by hand delivery, confirmed facsimile, Federal Express or other national
overnight courier, or by certified mail, return receipt requested, postage
prepaid and shall be deemed delivered upon receipt, or, if earlier, when
deposited in the United States mail. Any party hereto may change its address
for notices hereunder by giving at least five (5) business days' prior written
notice of its new address to the other party hereto as provided herein:
Purchaser:
Old Hill Partners Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxx
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
with copy to:
Xxxxx Xxxxxxxx, LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
Seller:
Foothill Capital Corporation
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
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Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
with copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx Hilson, Esq.
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
15. Entire Agreement. This Contract (including the exhibits attached
hereto) contains the entire agreement between Seller and Purchaser, and no oral
statements or prior written matter not specifically incorporated in this
Contract shall be of any force and effect. No variation, modification or changes
of this Contract shall be binding on either party unless set forth in a document
executed by the parties hereto or a duly authorized agent, officer or
representative thereof.
16. Assigns. This Contract shall inure to the benefit of and be binding on
the parties hereto and their respective legal representatives, successors and
assigns. Either party may assign its rights under this Contract at any time at
or prior to Closing to any other person or entity. Seller agrees that if
Purchaser assigns its rights to this Contract such assignment will have the
effect of fully releasing Purchaser from any and all of Purchaser's obligations
and liability pursuant to this Contract. Notwithstanding the previous sentence,
upon any such assignment, Seller further agrees to execute any such documents as
Purchaser may require to effectuate Seller's intent of releasing Purchaser from
any and all obligations and liability with regard to the Contract.
17. Time of the Essence. Time is of the essence in the execution and
performance of this Contract and of each of its provisions.
18. Terminology. The captions beside the section numbers of this Contract
are for reference only and shall not modify or affect this Contract in any
manner whatsoever. Whenever required by the context, any gender shall include
any other gender, the singular shall include the plural, and the plural shall
include the singular.
19. GOVERNING LAW. THIS CONTRACT, AND ANY CAUSE OF ACTION ARISING OUT OF
THIS CONTRACT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
20. VENUE; WAIVER OF JURY TRIAL. THE PARTIES AGREE THAT ALL ACTIONS OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS CONTRACT SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW
YORK, STATE OF NEW YORK. EACH PARTY HERETO WAIVES THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
CONTRACT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT CLAIMS,
TORT
12
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
EACH PARTY HERETO REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER AND EACH
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS CONTRACT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
21. Severability. If any one or more of the provisions contained in this
Contract shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision, and this Contract shall be construed as if such
invalid, illegal or unenforceable provision had never been contained in this
Contract.
22. Foreign Person. If Seller is not a "foreign person," as defined in
Section 1445 of the Internal Revenue Code of 1986, as amended (the "FEDERAL TAX
LAW") then at the Closing, Seller will deliver to Purchaser a certificate so
stating, in a form complying with the Federal Tax Law. If Seller is a "foreign
person" or if Seller fails to deliver the required certificate at the Closing,
then in either event the funding to Seller at the Closing will be adjusted to
the extent required to comply with the withholding provisions of the Federal
Tax Law; and although the amount withheld will still be paid at the Closing by
Purchaser, it will be retained by a mutually acceptable escrow agent for
delivery to the Internal Revenue Service together with the appropriate Federal
Tax Law forwarding forms (and with copies being provided both to Seller and to
Purchaser). The following parties are approved as mutually acceptable escrow
agents if withholding is warranted in accordance with the immediately
preceding sentence (listed in order of decreasing preference): the Title
Company, the Purchaser's "independent CPA" (i.e., a certified public accountant
who is associated with an independent CPA firm), the Seller's "independent CPA"
or a financial institution mutually acceptable to Seller and Purchaser.
23. Rules of Construction. The parties acknowledge that each party and its
counsel have reviewed and revised this Contract, and the parties agree that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Contract or any amendments or exhibits hereto.
24. Attorneys' Fees. If any litigation arises between any of the parties
hereto with respect to this Contract, the subject matter hereof or any
agreement executed pursuant to or in connection with this Contract, the
prevailing party shall be entitled to recover its reasonable costs and
expenses, including, without limitation, attorneys' fees and court costs,
incurred as a result of or in connection with such litigation.
25. Further Acts and Assurances. Seller agrees to perform, execute and/or
deliver or cause to be performed, executed and/or delivered at the Closing or
after the Closing, any and all further acts, deeds and assurances as Purchaser
may reasonably require (i) to evidence and invest in Purchaser the ownership of
the Loan and the Loan Documents, and (ii) to consummate the transactions
contemplated hereby. Purchaser agrees to perform, execute and/or deliver or
cause to be performed, executed and/or delivered at the Closing or after the
Closing, any and all further acts, deeds and assurances as Seller may
reasonably require to consummate the transactions contemplated hereby.
13
26. No Third Party Beneficiaries. The representations and warranties of
Seller and Purchaser in this Contract are made only by Seller to Purchaser
personally and by Purchaser to Seller personally and are not assignable by
Purchaser or by Seller, and are not subject to enforcement by any other Person;
provided, however, that the representations and warranties of Seller may be
assigned by Purchaser to any assignee to whom Purchaser may sell the Loan and
the Loan Documents, and may be enforced by any such assignee of Purchaser. This
Contract is entered into for the sole protection and benefit of the parties
hereto and their respective successors and assigns (including any assignee of
Purchaser to whom Purchaser may sell the Loan and the Loan Documents), and no
other Person shall be a direct or indirect beneficiary of, or shall have any
direct or indirect cause of action or claim in connection with, this Contract.
27. Counterparts. This Contract may be executed in multiple counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same Contract.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
14
IN WITNESS WHEREOF, this Contract is executed to be effective for all
purposes as of the Effective Date.
SELLER:
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxx Xxxxxx
____________________________________
Name: Xxxx Xxxxxx
Title: Vice President
Date Executed: September 7, 2001
PURCHASER:
OLD HILL PARTNERS INC.,
a Delaware corporation
By: ____________________________________
Name: Xxxx Xxxx
Title: President
Date Executed: September 7, 2001
15
IN WITNESS WHEREOF, this Contract is executed to be effective for all
purposes as of the Effective Date.
SELLER:
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:__________________________________
Name: Xxxx Xxxxxx
Title: Vice President
Date Executed: September 7, 2001
PURCHASER:
OLD HILL PARTNERS, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxx
__________________________________
Name: Xxxx Xxxx
Title: President
Date Executed: September 7, 2001
15
OBLIGORS' ACKNOWLEDGEMENT
The undersigned Obligors each hereby approves of, and agrees and consents
to, the forgoing Loan Purchase Contract (the "CONTRACT"), dated of even date
herewith, between Foothill Capital Corporation, a California corporation
("SELLER"), and Old Hill Partners Inc. a Delaware corporation ("PURCHASER").
Each Obligor covenants and agrees that it will take all actions that are
reasonably requested in order to satisfy the conditions and other requirements
of, or to facilitate the closing of, the transactions contemplated by the
Contract.
MALIBU ENTERTAINMENT WORLDWIDE, INC., a Georgia corporation
MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a Texas corporation
MALIBU MANAGEMENT COMPANY, a Georgia corporation
MALIBU GRAND PRIX CORPORATION, a Delaware corporation
TUCSON MGPC, INC., an Arizona corporation
XXXXXX HILLS MGPC, INC., a California corporation
XXXXXX HILLS SHOWBOAT MGPC, INC., a California corporation
REDONDO BEACH CASTLE MGPC, INC., a California corporation
REDWOOD CITY CASTLE MGPC, INC., a California corporation
SAN DIEGO MGPC, INC., a California corporation
PORTLAND MGPC, INC., an Oregon corporation
DALLAS CASTLE MGPC, INC., a Texas corporation
SAN XXXXXXX XXXXXX 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
MALIBU CENTERS, INC., a Delaware corporation
By: /s/ R. Xxxxx Xxxxxxx
___________________________________
Name: R. Xxxxx Xxxxxxx
Title: Responsible officer for each of the
above referenced Persons composing the Obligors
16
Exhibit A
Mortgages
a. Mortgages and Security Agreement and Assignment of Leases and Rents
for Henderson, NV FunCenter, Xxxxx County, Nevada, in favor of
Foothill and filed on August 28, 1996, under Book 960828,
Instrument 309, and Book 960828, Book 310;
b. Open-End Leasehold Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing Mortgages and Security Agreement for
Redwood City MGP, San Mateo County, California, in favor of
Foothill, filed on October 19, 1998 under File No. 98-169185;
c. Open-End Leasehold Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing for Redondo Beach Castle MGP, Los
Angeles County, California, in favor of Foothill and filed on
November 13, 1998 under File No. 00-0000000;
d. Mortgages and Security Agreement and Assignment of Leases and Rents
for Kennesaw, GA Malibu FunCenter, in favor of Foothill and filed
on July 16, 1996 in Book 9483, Page 0284, and Book 9843, Page 0289;
e. Mortgages and Security Agreement and Assignment of Leases and Rents
for Tampa, Florida Malibu Grand Prix, Hillsborough County, Florida,
in favor of Foothill and filed on September 3, 1996 under Book
8268, Volume 1107, and Book 8268, Volume 1115;
f. Leasehold Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing for Dallas SpeedZone, Dallas County, Texas, in
favor of Foothill and filed on November 4, 1998 in the Deed Records
of Dallas County, Texas;
g. Leasehold Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing for San Antonio MGP, Bexar County, Texas, in
favor of Foothill and filed on October 8, 1999 under Book D, Volume
8161, Page 1044;
h. Deed of Trust, Security Agreement, Fixture Filing and Assignment of
Rents for Mountasia of Kingwood, Xxxxxxxxxx County, Texas, in favor
of Foothill and filed on August 30, 1996 under File No. 9654353;
i. Leasehold Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing for Mountasia of North Xxxx, Xxxx County,
Georgia, dated effective as of September 7, 2001, in favor of to be
filed; and
j. Leasehold Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing for Gwinnett MGP, Gwinnett County, Georgia,
dated effective as of September 7, 2001, in favor of Foothill to be
filed.
Stock Pledges
Stock Pledge Agreement dated effective August 22, 1996, from Malibu Grand
Prix Corporation as pledgor to Seller as pledgee.
A-1
Stock Pledge Agreement dated effective August 22, 1996, from Malibu
Entertainment Worldwide, Inc. as pledgor to Seller as pledgee.
Security Agreements
1. Consolidated, Amended, and Restated Loan and Security
Agreement dated as of August 22, 1996, by and between Mountasia
Entertainment International, Inc., Forty-Five of its Direct and Indirect
Subsidiaries identified herein, and Foothill Capital Corporation
("Foothill"), together with exhibits and schedules, as amended.
2. Trademark Security Agreement dated August 22, 1996, and
executed by Malibu Entertainment Worldwide, Inc.
3. Trademark Security Agreement dated August 22, 1996,
and executed by Malibu Grand Prix Corporation.
Collateral Loan Documents
Blocked Depository Account Agreement executed December 19, 1996
A-1
Exhibit B
Properties
1. AUSTIN MGP:
0000 X-00 Xxxxx, Xxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000
2. COLUMBUS MGP:
0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000
3. DALLAS SpeedZone:
00000 Xxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000
4. GWINNETT MGP:
0000 Xxxxx Xxxxxx Xxxx., Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000
5. HOUSTON CASTLE MGP:
0000 X. Xxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000
6. KENNESAW SpeedZone:
0000 Xxxxxx Xxxxxx Xxxx., Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000
7. MOUNTASIA OF HENDERSON:
0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx 00000
8. MOUNTASIA OF KINGWOOD:
0000 Xxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000
9. MOUNTASIA OF NORTH XXXX:
000 Xxxxxx Xxxxxxx Xxxx., Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000
10. MOUNTASIA OF PLANO:
0000 Xxxxxxx Xx., Xxxxxx Xxxxxx, Xxxxx, XX 00000
11. MOUNTASIA OF WILLOWBROOK:
00000 Xxxxxxx Xxxx., Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000
12. PORTLAND MGP:
0000 XX Xxxxxxx Xxx., Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx 00000
13. XXXXXX HILLS SpeedZone:
17871 Castleton, Los Angeles County, City of Industry, California 91748
14. REDONDO BEACH CASTLE MGP:
0000 Xxxxxx Xxxxxx, Xxx Xxxxxxx County, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
15. REDWOOD CITY MGP:
000 Xxxxxxxxx, Xxx Xxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000
16. SAN XXXXXXX XXXXXX MGP:
0000 Xxxxxx Xxxxx Xx., Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx 00000
17. TAMPA MGP:
00000 X. Xxxxxxxx, Xxxxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000
B-1
Exhibit C
Seller's Estoppel Certificate
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE THE UNDERSIGNED NOTARY PUBLIC, ON THIS DAY PERSONALLY APPEARED THE
INDIVIDUAL IDENTIFIED BELOW WHO, UPON OATH, AFTER BEING DULY SWORN, DID DEPOSE
AND STATE AS FOLLOWS:
1. The undersigned is Vice President of Foothill Capital Corporation, a
California corporation ("SELLER") and is duly authorized to execute this
Seller's Estoppel Certificate (the "ESTOPPEL CERTIFICATE") on behalf of
Seller.
2. This Estoppel Certificate is given to Old Hill Partners Inc., a Delaware
corporation ("PURCHASER"), pursuant to that certain Loan Purchase Contract
(the "CONTRACT"), dated September 7, 2001 between Seller and Purchaser,
under the terms of which the Seller has agreed to sell to Purchaser all of
Seller's right, title and interest in that certain Loan (the "LOAN") and
those certain Loan Documents (the "LOAN DOCUMENTS") as more particularly
described in the Contract.
3. The Seller is the legal and equitable owner and holder of the Loan and the
rights granted by an Obligor pursuant to the Loan Documents, and is the
legal and equitable owner and holder of all of the liens and security
interests arising under the Loan Documents.
4. As of the date of this Estoppel Certificate, the unpaid principal balance
of the Loan is $___________, and interest has been paid through
_____________, 2001.
5. The maturity of the Loan has not been accelerated.
6. There are no outstanding liens, encumbrances security interests or claims
of any kind against the Loan or the Loan Documents.
7. The Seller will execute and deliver to Purchaser such assignments,
documents and instruments reasonably requested by Purchaser to effectuate
the purchase of the Loan and the Loan Documents by Purchaser.
8. The Seller is a California corporation, and the undersigned has full power
and legal authority to execute this affidavit on behalf of Seller and to
transfer, assign and convey the Loan and the Loan Documents, and the liens
and security interests arising under the Loan Documents, to Purchaser.
9. The Seller acknowledges that Purchaser is relying upon this Estoppel
Certificate in connection with its purchase of the Loan and the Loan
Documents and would not purchase the Loan and the Loan Documents without
this Estoppel Certificate.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY.]
Dated: September 7, 2001
FOOTHILL CAPITAL CORPORATION
By:____________________________
Name: Xxxx Xxxxxx
Title: Vice President
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was acknowledged before me on the 7th day of September,
2001 by Xxxx Xxxxxx, Vice President of Foothill Capital Corporation, a
California corporation, on behalf of said corporation.
_______________________________
Name:__________________________
Notary Public, State of Texas
My commission expires:_________
Exhibit D
Borrower's Estoppel Certificate
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE THE UNDERSIGNED NOTARY PUBLIC, ON THIS DAY PERSONALLY APPEARED THE
INDIVIDUAL IDENTIFIED BELOW WHO, UPON OATH, AFTER BEING DULY SWORN, DID DEPOSE
AND STATE AS FOLLOWS:
1. The undersigned is Chief Financial Officer of Malibu Entertainment
Worldwide, Inc., a Georgia corporation ("BORROWER"), and is duly
authorized, and has full power and legal authority, to execute this
Borrower's Estoppel Certificate (the "BORROWER'S CERTIFICATE") on behalf of
Borrower and on behalf of certain of Borrower's subsidiaries (the
"SUBSIDIARIES") that are parties to, and obligors under, the Loan (as
defined hereinafter) and the Loan Documents (as defined hereinafter).
2. This Borrower's Certificate is given to Old Hill Partners Inc., a Delaware
corporation ("PURCHASER"), pursuant to that certain Loan Purchase Contract
(the "CONTRACT"), dated September 7, 2001 between Purchaser and Foothill
Capital Corporation, a California (the "SELLER"), under the terms of which
the Seller has agreed to sell to Purchaser all of Seller's right, title and
interest in that certain Loan (the "LOAN") and those certain Loan Documents
(the "LOAN DOCUMENTS") as more particularly described in the Contract.
3. Borrower and the Subsidiaries are the only obligors under the Loan and the
Loan Documents.
4. As of the date of this Borrower's Certificate, the unpaid principal balance
of the Loan is $____________, and interest has been paid through
_________________, 2001.
5. The maturity of the Loan has not been accelerated.
6. To the best of Borrower's knowledge, there currently exists no Event of
Default under the Loan or the Loan Documents, and there currently exists no
event that, with the giving of notice or the lapse of time, or both, would
give rise to an Event of Default.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY.]
7. Borrower acknowledges that Purchaser is relying upon this Borrower's
Certificate in connection with its purchase of the Loan and the Loan
Documents and would not purchase the Loan and the Loan Documents without
this Borrower's Certificate.
Dated: September 7, 2001
MALIBU ENTERTAINMENT WORLDWIDE, INC.
By:____________________________
Name: R. Xxxxx Xxxxxxx
Title: Chief Financial Officer
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was acknowledged before me on the 7th day of September,
2001 by R. Xxxxx Xxxxxxx, Chief Financial Officer of Malibu Entertainment
Worldwide, Inc., a Georgia corporation, on behalf of said corporation
_______________________________
Name:__________________________
Notary Public, State of Texas
My commission expires:_________
