1
EXHIBIT 10.6
AMENDMENT NUMBER ONE TO
CONSOLIDATED, AMENDED, AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER ONE TO CONSOLIDATED, AMENDED, AND RESTATED LOAN
AND SECURITY AGREEMENT (THIS "AMENDMENT"), is entered into as of September 4,
1996, between FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), with a place of business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, MOUNTASIA ENTERTAINMENT
INTERNATIONAL, INC., a Georgia corporation ("Mountasia"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MOUNTASIA MANAGEMENT COMPANY, a Georgia corporation ("MMC"),
with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA PARTNERS I, INC., a Georgia corporation
("MPI"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MALIBU GRAND PRIX CORPORATION, a Delaware
corporation ("MGPC"), with its chief executive office located at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MIAMI CASTLE MGPC, INC., a
Florida corporation ("Miami"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, TEMPE MGPC, INC., an
Arizona corporation ("Tempe"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, TUCSON MGPC, INC., an
Arizona corporation ("Tucson"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, FRESNO MGPC, INC., a
California corporation ("Fresno"), with its chief executive office located at
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, NORTH HOLLYWOOD
CASTLE MGPC, INC., a California corporation ("NHC"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
XXXXXX HILLS MGPC, INC., a California corporation ("PH"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, XXXXXX HILLS SHOWBOAT MGPC, INC., a California corporation
("PHS"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, REDONDO BEACH CASTLE MGPC, INC., a
California corporation ("RBC"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, REDWOOD CITY CASTLE
MGPC, INC., a California corporation ("RCC"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, REDWOOD
CITY MGPC, INC., a California corporation ("RC"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
SAN DIEGO MGPC, INC., a California corporation ("San Diego"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, DENVER MGPC, INC., a Colorado corporation ("Denver"), with its
chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, XXXXXXX XXXXXX
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MGPC, INC., a Florida corporation ("OC"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, ORLANDO
MGPC, INC., a Florida corporation ("Orlando"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, TAMPA
CASTLE MGPC, INC., a Florida corporation ("TC"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
TAMPA MGPC, INC., a Florida corporation ("Tampa"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
LENEXA MGPC, INC., a Kansas corporation ("Lenexa"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
MT. LAUREL MGPC, INC., a New Jersey corporation ("Mt.Laurel"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, COLUMBUS MGPC, INC., an Ohio corporation ("Columbus"), with its
chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, CINCINNATI MGPC, INC., an Ohio corporation ("Cincinnati"), with
its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, PORTLAND MGPC, INC., an Oregon corporation
("Portland"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, AUSTIN MGPC, INC., a Texas corporation
("Austin"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, DALLAS CASTLE MGPC, INC., a Texas
corporation ("DC"), with its chief executive office located at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, DALLAS MGPC, INC., a Texas
corporation ("Dallas"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, HOUSTON CASTLE MGPC,
INC., a Texas corporation ("HC"), with its chief executive office located at
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, HOUSTON II MGPC,
INC., a Texas corporation ("Houston"), with its chief executive office located
at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, SAN XXXXXXX
XXXXXX MGPC, INC., a Texas corporation ("SAC"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, SAN
ANTONIO MGPC, INC., a Texas corporation ("San Antonio"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MOUNTASIA DEVELOPMENT COMPANY, a Georgia corporation ("MDC"),
with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, MALIBU GRAND PRIX DESIGN & MANUFACTURING, INC., a
California corporation ("MGPDMI"), with its chief executive office located at
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MALIBU GRAND PRIX
FINANCIAL SERVICES, INC., a California corporation ("MGPFSI"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, OFF TRACK MANAGEMENT, INC., a California corporation ("Off
Track"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MGP SPECIAL, INC., a California
corporation ("Special"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, AMUSEMENT
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MANAGEMENT FLORIDA, INC., a Florida corporation ("Amusement"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MALIBU GRAND PRIX CONSULTING, INC., a California corporation
("Consulting"), with its chief executive office located at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA - MEI INTERNATIONAL,
INC., a Georgia corporation ("MMEII"), with its chief executive office located
at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA - MEI
LIMITED COMPANY, INC., a California corporation ("MMEILC"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MOUNTASIA - MEI CALIFORNIA, INC., a California corporation
("MCNC"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA - MEI CALIFORNIA LIMITED
PARTNERSHIP, a California limited partnership ("MMEICLP"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MOUNTASIA - MEI MANUFACTURING COMPANY, INC., a Georgia
corporation ("MMEIMCI"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, AMUSEMENT CO., INC., a
Delaware corporation ("ACI"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, and AMUSEMENT CO.
PARTNERS, INC., a Delaware corporation ("ACPI"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
This Amendment is entered into with reference to the following facts:
A. Foothill, as lender, and Mountasia and forty-five of its
direct and indirect Subsidiaries, jointly and severally as
borrower, heretofore entered into that certain Consolidated,
Amended, and Restated Loan and Security Agreement, dated as of
August 22, 1996 (herein the "Agreement");
B. Borrower has requested Foothill to amend the Agreement as set
forth in this Amendment, to permit Borrower to repurchase
$2,700,000 of the Ten Percent Debentures;
C. Foothill is willing to so amend the Agreement in accordance
with the terms and conditions hereof; and
D. All capitalized terms used herein and not defined herein shall
have the meanings ascribed to them in the Agreement, as
amended hereby.
NOW, THEREFORE, in consideration of the above recitals and the
mutual promises contained herein, Foothill and Borrower hereby agree as
follows:
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1. Amendments to the Agreement.
a. Section 1.1 of the Agreement hereby is
amended by adding the following new defined terms in alphabetical order:
"First Amendment" means that certain Amendment Number
One to Consolidated, Amended, and Restated Loan and Security
Agreement, dated as of September 4, 1996, between Foothill and
Borrower.
"Permitted Ten Percent Debenture Repurchases" means,
so long as no Event of Default has occurred and is continuing, the
repurchase by Mountasia, for cash, for not more than par, in one or
more transactions, of not more than $2,700,000 in the aggregate of the
Ten Percent Debentures.
b. The following definitions contained in
Section 1.1 of the Amendment are amended and restated in their entirety to read
as follows:
"Permitted Transactions" means (a) the NEF
Acquisition, (b) the Willowbrook Acquisition, (c) the Nine Percent
Debenture Amendments, (d) the Nine Percent Debenture Conversion, (e)
the NEF Debenture Conversion, (f) the Ten Percent Debenture
Conversion, (g) Permitted Subordinated Debt Payments, (h) Permitted
Special Distributions, (i) Permitted Unrestricted Subsidiary
Investments, (j) Permitted Unrestricted Subsidiary Transactions, (k)
Permitted Hampstead Transactions, and (l) Permitted Ten Percent
Debenture Repurchases.
c. The following specified provisions of the
Agreement hereby are amended and restated in their entirety as follows:
(1) The last sentence of Section 7.8 of the
Agreement:
Without limiting the generality of the foregoing, except for Permitted
Ten Percent Debenture Repurchases, at no time shall Borrower make any
(y) payment with respect to any Subordinated Debt if the making of
same would conflict with the subordination provisions thereof, or (z)
cash payment of principal with respect to the NEF Debentures.
(2) Section 8.11 of the Agreement:
8.11 If Borrower makes any payment on account of
Indebtedness that has been contractually subordinated in right of
payment to the payment of the Obligations, except to the extent such
payment is permitted by the terms of the subordination provisions
applicable to such
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Indebtedness, and except for Permitted Ten Percent Debenture
Repurchases; or
2. Representations and Warranties. Borrower hereby
represents and warrants to Foothill that (a) the execution, delivery, and
performance of this Amendment and of the Agreement, as amended by 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 governmental 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) this Amendment and the
Agreement, as amended by this Amendment, constitute Borrower's legal, valid,
and binding obligation, enforceable against Borrower in accordance with its
terms.
3. Conditions Precedent to Amendment. The satisfaction
of each of the following, on or before the First Amendment Closing Deadline,
unless waived or deferred by Foothill in its sole discretion, shall constitute
conditions precedent to the effectiveness of this Amendment:
a. Foothill shall have received the following
document, duly executed, and which document shall be in full force and effect:
(1) the Investment Agreement Amendment.
b. 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 date
hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);
c. 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;
d. 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 or Foothill; and
e. All other documents and legal matters in
connection with the transactions contemplated by this Amendment shall have been
delivered or executed or recorded and shall be in form and substance
satisfactory to Foothill and its counsel.
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4. Further Assurances. Borrower shall execute and
deliver all agreements, documents, and instruments, in form and substance
satisfactory to Foothill, and take all actions as Foothill may reasonably
request from time to time fully to consummate the transactions contemplated
under this Amendment and the Agreement, as amended by this Amendment.
5. Miscellaneous.
a. Upon the effectiveness of this Amendment,
each reference in the Agreement to "this Agreement", "hereunder", "herein",
"hereof" or words of like import referring to the Agreement shall mean and
refer to the Agreement as amended by 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 Agreement shall
mean and refer to the Agreement as amended by this Amendment.
c. As used in this Amendment, "First Amendment
Closing Deadline" means September 23, 1996.
d. As used in this Amendment, "Investment
Agreement Amendment" means an amendment to the Investment Agreement, entered
into between Hampstead and Mountasia, in form and substance acceptable to
Foothill, pursuant to which the parties to the Investment Agreement clarify
that (i) the additional up to $2,700,000 of new equity to be made available by
Hampstead if Mountasia repurchases up to $2,700,000 of Ten Percent Debentures
also will be available if Mountasia uses funds on hand without regard to the
issuance of new equity (rather than funds received from Hampstead in connection
with the issuance of new equity) to fund such repurchases, and, notwithstanding
paragraph (f) of Exhibit G to the Investment Agreement, such additional new
equity availability is not restricted to the situation where the funds received
from Hampstead in connection with the issuance of new equity are the actual
funds used to repurchase Ten Percent Debentures, (ii) notwithstanding paragraph
(h) of Exhibit G to the Investment Agreement, if Mountasia uses up to
$2,700,000 of its funds on hand (without regard to the issuance of new equity)
to repurchase Ten Percent Debentures, and subsequently issues up to $2,700,000
of new equity to Hampstead to replenish such funds previously used for such
purpose, such up to $2,700,000 so received from Hampstead shall not be subject
to any restrictions as to the use thereof by Mountasia otherwise set forth in
paragraph (h) of Exhibit G of the Investment Agreement, and (iii) the only
remaining conditions to Hampstead's agreement to purchase new equity of
Mountasia as set forth in the Investment
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Agreement, as amended by the Investment Agreement Amendment, are those
conditions expressly set forth in Exhibit G to the Investment Agreement, as
amended by the Investment Agreement Amendment.
e. This Amendment shall be governed by and
construed in accordance with the laws of the State of California.
f. This Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first written above.
MOUNTASIA
ENTERTAINMENT
INTERNATIONAL, INC.,
a Georgia corporation
MOUNTASIA MANAGEMENT COMPANY,
a Georgia corporation
MOUNTASIA PARTNERS I, INC.,
a Georgia corporation
MALIBU GRAND PRIX CORPORATION,
a Delaware corporation
MIAMI CASTLE MGPC, INC.,
a Florida corporation
TEMPE MGPC, INC.,
an Arizona corporation
TUCSON MGPC, INC.,
an Arizona corporation
FRESNO MGPC, INC.,
a California corporation
NORTH HOLLYWOOD CASTLE MGPC, INC.,
a California corporation
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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
REDWOOD CITY MGPC, INC.,
a California corporation
SAN DIEGO MGPC, INC.,
a California corporation
DENVER MGPC, INC.,
a Colorado corporation
XXXXXXX XXXXXX MGPC, INC.,
a Florida corporation
ORLANDO MGPC, INC.,
a Florida corporation
TAMPA CASTLE MGPC, INC.,
a Florida corporation
TAMPA MGPC, INC.,
a Florida corporation
LENEXA MGPC, INC.,
a Kansas corporation
MT. LAUREL MGPC, INC.,
a New Jersey corporation
COLUMBUS MGPC, INC.,
an Ohio corporation
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CINCINNATI MGPC, INC.,
an Ohio corporation
PORTLAND MGPC, INC.,
an Oregon corporation
AUSTIN MGPC, INC.,
a Texas corporation
DALLAS CASTLE MGPC, INC.,
a Texas corporation
DALLAS MGPC, INC.,
a Texas corporation
HOUSTON CASTLE MGPC, INC.,
a Texas corporation
HOUSTON II 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
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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 CALIFORNIA LIMITED
PARTNERSHIP,
a California limited partnership
By Mountasia - MEI International,
Inc., its general partner
MOUNTASIA - MEI MANUFACTURING COMPANY,
INC.,
a Georgia corporation
AMUSEMENT CO., INC.,
a Delaware corporation
AMUSEMENT CO. PARTNERS, INC.,
a Delaware corporation
By /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President of
each Debtor, on behalf of each
Debtor
FOOTHILL CAPITAL CORPORATION,
a California corporation
By /s/ XXXXXXXXX XXXXX
-----------------------------------
Name: Xxxxxxxxx Xxxxx
Title:
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AMENDMENT NUMBER TWO TO CONSOLIDATED, AMENDED, AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER TWO TO CONSOLIDATED, AMENDED, AND RESTATED LOAN
AND SECURITY AGREEMENT (THIS "AMENDMENT"), is entered into as of May 22, 1997,
between FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"),
with a place of business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, MOUNTASIA ENTERTAINMENT INTERNATIONAL,
INC., a Georgia corporation ("Mountasia"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
MOUNTASIA MANAGEMENT COMPANY, a Georgia corporation ("MMC"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MOUNTASIA PARTNERS I, INC., a Georgia corporation ("MPI"), with
its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, MALIBU GRAND PRIX CORPORATION, a Delaware
corporation ("MGPC"), with its chief executive office located at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MIAMI CASTLE MGPC, INC., a
Florida corporation ("Miami"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, TEMPE MGPC, INC., an
Arizona corporation ("Tempe"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, TUCSON MGPC, INC., an
Arizona corporation ("Tucson"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, FRESNO MGPC, INC., a
California corporation ("Fresno"), with its chief executive office located at
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, NORTH HOLLYWOOD
CASTLE MGPC, INC., a California corporation ("NHC"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
XXXXXX HILLS MGPC, INC., a California corporation ("PH"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, XXXXXX HILLS SHOWBOAT MGPC, INC., a California corporation
("PHS"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, REDONDO BEACH CASTLE MGPC, INC., a
California corporation ("RBC"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, REDWOOD CITY CASTLE
MGPC, INC., a California corporation ("RCC"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, REDWOOD
CITY MGPC, INC., a California corporation ("RC"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
SAN DIEGO MGPC, INC., a California corporation ("San Diego"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, DENVER MGPC, INC., a Colorado corporation ("Denver"), with its
chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, XXXXXXX XXXXXX MGPC, INC., a Florida corporation ("OC"), with
its chief executive office located at 5895
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Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, ORLANDO MGPC, INC., a
Florida corporation ("Orlando"), with its chief executive office located at
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, TAMPA CASTLE MGPC,
INC., a Florida corporation ("TC"), with its chief executive office located at
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, TAMPA MGPC, INC.,
a Florida corporation ("Tampa"), with its chief executive office located at
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, LENEXA MGPC, INC.,
a Kansas corporation ("Lenexa"), with its chief executive office located at
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MT. LAUREL MGPC,
INC., a New Jersey corporation ("Mt.Laurel"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
COLUMBUS MGPC, INC., an Ohio corporation ("Columbus"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
CINCINNATI MGPC, INC., an Ohio corporation ("Cincinnati"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, PORTLAND MGPC, INC., an Oregon corporation ("Portland"), with
its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, AUSTIN MGPC, INC., a Texas corporation ("Austin"),
with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, DALLAS CASTLE MGPC, INC., a Texas corporation
("DC"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxx 00000, DALLAS MGPC, INC., a Texas corporation
("Dallas"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, HOUSTON CASTLE MGPC, INC., a Texas
corporation ("HC"), with its chief executive office located at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, HOUSTON II MGPC, INC., a Texas
corporation ("Houston"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, SAN XXXXXXX XXXXXX
MGPC, INC., a Texas corporation ("SAC"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, SAN
ANTONIO MGPC, INC., a Texas corporation ("San Antonio"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MOUNTASIA DEVELOPMENT COMPANY, a Georgia corporation ("MDC"),
with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, MALIBU GRAND PRIX DESIGN & MANUFACTURING, INC., a
California corporation ("MGPDMI"), with its chief executive office located at
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MALIBU GRAND PRIX
FINANCIAL SERVICES, INC., a California corporation ("MGPFSI"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, OFF TRACK MANAGEMENT, INC., a California corporation ("Off
Track"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MGP SPECIAL, INC., a California
corporation ("Special"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, AMUSEMENT MANAGEMENT
FLORIDA, INC., a Florida corporation ("Amusement"), with its
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chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MALIBU GRAND PRIX CONSULTING, INC., a California corporation
("Consulting"), with its chief executive office located at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA - MEI INTERNATIONAL,
INC., a Georgia corporation ("MMEII"), with its chief executive office located
at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA - MEI
LIMITED COMPANY, INC., a California corporation ("MMEILC"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MOUNTASIA - MEI CALIFORNIA, INC., a California corporation
("MCNC"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA - MEI CALIFORNIA LIMITED
PARTNERSHIP, a California limited partnership ("MMEICLP"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MOUNTASIA - MEI MANUFACTURING COMPANY, INC., a Georgia
corporation ("MMEIMCI"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, AMUSEMENT CO., INC., a
Delaware corporation ("ACI"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, and AMUSEMENT CO.
PARTNERS, INC., a Delaware corporation ("ACPI"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
WHEREAS Foothill and Borrower are parties to the Consolidated,
Amended, and Restated Loan and Security Agreement, entered into as of August
22, 1996 ("the Loan Agreement");
WHEREAS Mountasia has changed its legal name to Malibu Entertainment
Worldwide, Inc.;
WHEREAS, Borrower and Foothill have agreed that the references in the
Loan Documents to Mountasia be amended to account for such change in name in
accordance with the terms hereof; and
WHEREAS, Borrower has disposed of certain parcels of real property
which necessitates the amendment of Schedule R-1 and Exhibit I.
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.
-3-
14
1. Amendments to the Loan Agreement.
a. Section 1.1 of the Loan Agreement hereby is
amended by adding the following definitions:
"MEWI" means Malibu Entertainment Worldwide, Inc., formerly
known as Mountasia Entertainment International, a Georgia corporation.
"Real Property Collateral" means the Real Property, including
the parcel or parcels of real property and the related improvements thereto
identified on the Amended and Restated Schedule R-1 attached hereto, and any
Real Property hereafter acquired by Borrower.
b. Exhibit I of the Loan Agreement is hereby
amended, restated, and replaced by the Amended and Restated Exhibit I attached
hereto.
c. Each of the references to "Mountasia" or
"Mountasia Entertainment International, Inc." in the Loan Documents, including
but not limited to the Loan Agreement, is hereby amended and deemed to refer to
"MEWI" as defined herein.
2. 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 governmental 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, constitute Borrower's legal,
valid, and binding obligation, enforceable against Borrower in accordance with
its terms.
3. 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.
4. Effect on Loan Agreement. The Loan Agreement, as
amended hereby, shall be and remain in full force and effect in accordance with
its respective terms and hereby is ratified and confirmed in all respects. The
execution, delivery, and performance of this Amendment shall not operate as a
waiver of or, except as expressly set forth herein, as an amendment, of any
right, power, or remedy of Lender under the Loan Agreement, as in effect prior
to the date hereof.
-4-
15
5. Miscellaneous.
a. Upon the effectiveness of this Amendment,
each reference in the Agreement to "this Agreement", "hereunder", "herein",
"hereof" or words of like import referring to the Agreement shall mean and
refer to the Loan Agreement as amended by 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 Agreement shall
mean and refer to the Loan Agreement as amended by 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, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
-5-
16
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed in on the date first written above.
By:
---------------------------------------
By
-------------------------
in his capacity as of:
-------------
MALIBU ENTERTAINMENT WORLDWIDE, INC., formerly known as MOUNTASIA
ENTERTAINMENT INTERNATIONAL, INC., a Georgia corporation MOUNTASIA FAMILY
ENTERTAINMENT CENTERS, INC., a Texas corporation
By:
---------------------------------------
L. Xxxxx Xxxxxxx,
in his capacity as President of;
MOUNTASIA MANAGEMENT COMPANY, a Georgia corporation
MOUNTASIA PARTNERS I, INC., a Georgia corporation
MALIBU GRAND PRIX CORPORATION, a Delaware corporation
MIAMI CASTLE MGPC, INC., a Florida corporation
TEMPE MGPC, INC., an Arizona corporation
TUCSON MGPC, INC., an Arizona corporation
FRESNO MGPC, INC., a California corporation
NORTH HOLLYWOOD CASTLE MGPC, INC., a California 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
REDWOOD CITY MGPC, INC., a California corporation
SAN DIEGO MGPC, INC., a California corporation
DENVER MGPC, INC., a Colorado corporation
XXXXXXX XXXXXX MGPC, INC., a Florida corporation
ORLANDO MGPC, INC., a Florida corporation
TAMPA CASTLE MGPC, INC., a Florida corporation
TAMPA MGPC, INC., a Florida corporation
LENEXA MGPC, INC., a Kansas corporation
MT. LAUREL MGPC, INC., a New Jersey corporation
COLUMBUS MGPC, INC., an Ohio corporation
CINCINNATI MGPC, INC., an Ohio corporation
PORTLAND MGPC, INC., an Oregon corporation
AUSTIN MGPC, INC., a Texas corporation
DALLAS CASTLE MGPC, INC., a Texas corporation
-6-
17
DALLAS MGPC, INC., a Texas corporation
HOUSTON CASTLE MGPC, INC., a Texas corporation
HOUSTON II 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
MOUNTASIA - MEI MANUFACTURING COMPANY, INC., a Georgia corporation
AMUSEMENT CO., INC., a Delaware corporation
AMUSEMENT CO. PARTNERS, INC., a Delaware corporation
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-7-
18
AMENDED AND RESTATED EXHIBIT I
MOUNTASIA ENTERTAINMENT INTERNATIONAL, INC.
FUNCENTERS
LOCATION FEE SIMPLE LEASE
-------- ---------- -----
MOUNTASIA FUNCENTERS:
Willowbrook, TX X
North Xxxx, GA X
Columbus, OH X
Henderson, NV (NEF Acquisition) X
Houston, TX X
Arlington, TX X
Plano, TX X
Kingwood, TX X
McAllen, TX (NEF Acquisition) X
Spartanburg, SC X
------- ------ -----
TOTAL MOUNTASIA FUNCENTERS 8 + 2 = 10
------- ------ -----
MALIBU GRAND PRIX FUNCENTERS:
Tucson, AZ X
N. Hollywood, CA X
Xxxxxx Hills, CA X
Xxxxxxx Xxxxx, XX X
Xxxxxxx Xxxx, XX X
Denver, CO X
Miami, FL (NEF Acquisition) X
Orlando, FL X
Tampa, FL X
Kennesaw, GA X
Norcross, GA X
Lenexa, KS X
Mount Laurel, NJ X
Cincinnati, OH X
Columbus, OH X
Portland, OR X
Austin, TX X
Dallas, TX X
Houston, TX X
San Antonio, TX X
------- ------ -----
TOTAL MALIBU GRAND PRIX FUNCENTERS 5 + 15 = 20
------- ------ -----
TOTAL COMBINED FACILITIES 13 + 17 = 30
======= ====== =====
-8-
19
AMENDMENT NUMBER THREE TO CONSOLIDATED, AMENDED, AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER THREE TO CONSOLIDATED, AMENDED, AND RESTATED LOAN
AND SECURITY AGREEMENT (this "Amendment"), is entered into as of June 27, 1997,
between FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"),
with a place of business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, MALIBU ENTERTAINMENT WORLDWIDE, INC., a
Georgia corporation ("MEWI"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA MANAGEMENT
COMPANY, a Georgia corporation ("MMC"), with its chief executive office located
at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA
PARTNERS I, INC., a Georgia corporation ("MPI"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MALIBU
GRAND PRIX CORPORATION, a Delaware corporation ("MGPC"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MIAMI CASTLE MGPC, INC., a Florida corporation ("Miami"), with
its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, TEMPE MGPC, INC., an Arizona corporation ("Tempe"),
with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, TUCSON MGPC, INC., an Arizona corporation ("Tucson"),
with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, FRESNO MGPC, INC., a California corporation
("Fresno"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, NORTH HOLLYWOOD CASTLE MGPC, INC., a
California corporation ("NHC"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, XXXXXX HILLS MGPC, INC.,
a California corporation ("PH"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, XXXXXX HILLS SHOWBOAT
MGPC, INC., a California corporation ("PHS"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, REDONDO
BEACH CASTLE MGPC, INC., a California corporation ("RBC"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, REDWOOD CITY CASTLE MGPC, INC., a California corporation ("RCC"),
with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, REDWOOD CITY MGPC, INC., a California corporation
("RC"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxx 00000, SAN DIEGO MGPC, INC., a California corporation
("San Diego"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, DENVER MGPC, INC., a Colorado corporation
("Denver"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, XXXXXXX XXXXXX MGPC, INC., a Florida
corporation ("OC"), with its chief executive office located at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, ORLANDO MGPC, INC., a Florida
corporation ("Orlando"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, TAMPA CASTLE MGPC, INC.,
a Florida
20
corporation ("TC"), with its chief executive office located at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, TAMPA MGPC, INC., a Florida
corporation ("Tampa"), with its chief executive office located at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, LENEXA MGPC, INC., a Kansas
corporation ("Lenexa"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MT. LAUREL MGPC, INC.,
a New Jersey corporation ("Mt.Laurel"), with its chief executive office located
at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, COLUMBUS MGPC,
INC., an Ohio corporation ("Columbus"), with its chief executive office located
at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, CINCINNATI
MGPC, INC., an Ohio corporation ("Cincinnati"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
PORTLAND MGPC, INC., an Oregon corporation ("Portland"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, AUSTIN MGPC, INC., a Texas corporation ("Austin"), with its
chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, DALLAS CASTLE MGPC, INC., a Texas corporation ("DC"), with its
chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, DALLAS MGPC, INC., a Texas corporation ("Dallas"), with its
chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, HOUSTON CASTLE MGPC, INC., a Texas corporation ("HC"), with its
chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, HOUSTON II MGPC, INC., a Texas corporation ("Houston"), with its
chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, SAN XXXXXXX XXXXXX MGPC, INC., a Texas corporation ("SAC"), with
its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, SAN ANTONIO MGPC, INC., a Texas corporation ("San
Antonio"), with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA DEVELOPMENT COMPANY, a Georgia
corporation ("MDC"), with its chief executive office located at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MALIBU GRAND PRIX DESIGN &
MANUFACTURING, INC., a California corporation ("MGPDMI"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, MALIBU GRAND PRIX FINANCIAL SERVICES, INC., a California
corporation ("MGPFSI"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, OFF TRACK MANAGEMENT,
INC., a California corporation ("Off Track"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MGP
SPECIAL, INC., a California corporation ("Special"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
AMUSEMENT MANAGEMENT FLORIDA, INC., a Florida corporation ("Amusement"), with
its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, MALIBU GRAND PRIX CONSULTING, INC., a California
corporation ("Consulting"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA - MEI
INTERNATIONAL, INC., a Georgia corporation ("MMEII"), with its chief executive
office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
MOUNTASIA - MEI LIMITED COMPANY, INC., a California corporation ("MMEILC"),
with its chief executive office located at 0000 Xxxxxxxx
00
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA - MEI CALIFORNIA,
INC., a California corporation ("MCNC"), with its chief executive office
located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
MOUNTASIA - MEI CALIFORNIA LIMITED PARTNERSHIP, a California limited
partnership ("MMEICLP"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, MOUNTASIA - MEI
MANUFACTURING COMPANY, INC., a Georgia corporation ("MMEIMCI"), with its chief
executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, AMUSEMENT CO., INC., a Delaware corporation ("ACI"), with its
chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, AMUSEMENT CO. PARTNERS, INC., a Delaware corporation ("ACPI"),
with its chief executive office located at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, and MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a
Texas corporation ("MFEC"), with its chief executive office located at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
WHEREAS Foothill and Borrower are parties to the Consolidated,
Amended, and Restated Loan and Security Agreement, entered into as of August
22, 1996, (as amended to date, the "Loan Agreement");
WHEREAS Borrower has requested Foothill release its liens in
respect of the Xxxxxx Hills, California and Willowbrook, Texas properties
pledged to Foothill by MFEC in connection with the Loan Agreement;
WHEREAS Borrower has requested Foothill consent to (i) the
creation of a special purpose subsidiary ("SPC") of MFEC, (ii) to the transfer
of all of MFEC's interests in the Xxxxxx Hills, California and Willowbrook,
Texas properties to the SPC, (iii) to the transfer of all of the interests of
PH and PHS in any Personal Property collateral attached to, located on, or
appurtenant to the Xxxxxx Hills, California property to the SPC, and (iv) to
the SPC's obtaining financing from a third party lender on a senior, secured
basis, secured by the SPC's interests in the Xxxxxx Hills, California and
Willowbrook, Texas properties, any fixtures, machinery, equipment, and any
other personal property located on or appurtenant to those properties, and by
MFEC's pledge of its interest in the capital stock of the SPC;
WHEREAS Foothill has agreed to consent to the forgoing upon
Borrower's agreement to a permanent reduction of $2,500,000 in the Term Loan A
Commitment amount to $10,000,000 and to the other terms and conditions hereof;
WHEREAS, Borrower and Foothill have agreed to amend the Loan
Agreement in accordance with the terms hereof; and
WHEREAS, Borrower has disposed of certain parcels of real
property which necessitates the amendment and restatement of Schedule R-1 and
Exhibit I.
NOW, THEREFORE, in consideration of the mutual promises
contained herein, Foothill and Borrower hereby agree as follows:
22
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 the following definitions:
"Amended and Restated Subordinated Promissory Note"
means that certain Amended and Restated Subordinated Promissory Note
dated as of June 5, 1997 issued by MEWI in favor of MEIH, subject to
the terms and conditions of the Amended and Restated Subordination
Agreement, in the form attached hereto as Annex A.
"Amended and Restated Subordination Agreement" means
that certain Amended and Restated Subordination Agreement dated as of
June 27, 1997 among MEIH, MEWI, and Foothill, in the form attached
hereto as Annex B.
"Charlotte, North Carolina Mortgage" means that
certain Mortgage entered into between Borrower and Foothill in respect
of Borrower's land to be developed located in Charlotte, North
Carolina.
"Current MEIH Advances" means advances (other than
Permitted MEIH Subordinated Debt) made by MEIH to MEWI and outstanding
as of the Third Amendment Closing Date or made prior to September 1,
1997, but not to exceed $9,500,000 in aggregate principal amount (and
accrued interest thereon at a rate per annum not to exceed 10%).
"MEIH" means MEI Holdings, L.P. a Delaware limited
partnership.
"MFEC" means Mountasia Family Entertainment Centers,
Inc., a Texas corporation.
"Permitted MEIH Current Advances Payments" means, so
long as no Event of Default has occurred and is continuing, one or
more payments to MEIH, in an amount not to exceed $9,500,000 in
aggregate principal amount (and accrued interest thereon at a rate per
annum not to exceed 10%), made in connection with the repayment or the
prepayment of Current MEIH Advances extended to Borrower by MEIH,
provided that, in no event, shall such payment be made with Net Cash
Proceeds to the extent constituting a Required Amount.
"Permitted MEIH Subordinated Debt" means any
Indebtedness constituting a "Subordinated Obligation" under and as
defined in the Amended and Restated Subordination Agreement among
MEWI, MEIH, and Foothill in an aggregate principal amount of up to
$30,000,000.
23
"Permitted MEIH Subordinated Debt Payments" means, so
long as no Event of Default has occurred and is continuing and subject
the terms and conditions of the Amended and Restated Subordination
Agreement, one or more payments to MEIH, made in connection with the
repayment or prepayment of any Permitted MEIH Subordinated Debt
extended to Borrower by MEIH from time to time. Any such Permitted
MEIH Subordinated Debt Payments shall be made from the proceeds of the
issuance of additional capital stock of MEWI, or from the proceeds of
Future Subordinated Debt incurred by MEWI.
"Permitted SPC Advances" means, so long as no Event
of Default has occurred and is continuing, periodic advances from
Borrower to SPC, in an amount not to exceed $35,000,000 in the
aggregate, made in connection with SPC's repayment of the SPC
Non-Recourse Financing. Any such Permitted SPC Advances shall be made
from the proceeds of Future Subordinated Debt or from the proceeds of
the issuance of additional capital stock of MEWI.
"Reconveyance Transaction" means Foothill's release
of its liens on MFEC's interests in the Xxxxxx Hills, California and
Willowbrook, Texas properties.
"Second Amendment" means that certain Amendment
Number Two to Consolidated, Amended, and Restated Loan and Security
Agreement, dated as of May 22, 1997, between Foothill and Borrower.
"SPC" means a special purpose subsidiary of MFEC
formed for the purpose of holding the property conveyed in the SPC
Transfer and obtaining the SPC Non-Recourse Financing.
"SPC Non-Recourse Financing" means any Indebtedness
extended to SPC by a third party lender on terms and conditions
satisfactory to Foothill, in its reasonable discretion, in a principal
amount not to exceed $30,000,000, provided, however, that such
Indebtedness shall be non-recourse to any Debtor other than under the
pledge of the capital stock of SPC to such third party lender by MFEC,
but such Indebtedness may be recourse to SPC and may be secured by a
first priority Lien on all assets of SPC.
"SPC Non-Recourse Refinancing Deadline" shall mean
November 1, 1998.
"SPC Transfer" means the transfer of all of MFEC's
interest in the Xxxxxx Hills, California and Willowbrook, Texas
properties (including the personal property used in connection
therewith or otherwise related thereto) to SPC in connection with the
SPC Non-Recourse Financing.
24
"Term Loan A Commitment" means $10,000,000, as such
amount may be adjusted from time to time in accordance with the
provisions of Section 2.2(b).
"Third Amendment" means that certain Amendment Number
Three to Consolidated, Amended, and Restated Loan and Security
Agreement, dated as of June 27, 1997, between Foothill and Borrower.
"Third Amendment Closing Date" means the date on
which the Reconveyance Transaction is consummated pursuant to the
terms of the Third Amendment.
b. The definition of "Permitted Liens" in
Section 1.1 of the Loan Agreement hereby is amended by adding the following
clause (n) to the end of the definition following existing clause (m):
(n) Liens on the capital stock of SPC granted to a
third party lender by MFEC in connection with SPC Non-Recourse
Financing.
c. The definition of "Permitted Transactions" in
Section 1.1 of the Loan Agreement hereby is amended by adding the following
clauses (l), (m), (n), (o), and (p) to the end of the definition following
existing clause (k):
(l) Current MEIH Advances,
(m) Permitted Current MEIH Advances Payments,
(n) Permitted MEIH Subordinated Debt Payments,
(o) the SPC Non-Recourse Financing, and
(p) Permitted SPC Advances.
d. Section 2.2 of the Loan Agreement hereby is
amended by adding the following subsection thereto:
(c) Anything to the contrary in this Section 2.2
notwithstanding, if, prior to the SPC Non-Recourse Refinancing
Deadline, Borrower has not (i) extended the final maturity of the SPC
Non-Recourse Financing to a date on or after August 31, 2001, or (ii)
obtained replacement financing for the SPC Non- Recourse Financing on
terms and conditions satisfactory to Foothill in its sole discretion,
then Borrower shall commence repayment of the unpaid principal balance
of Term Loan A in monthly installments of principal in the amount of
$500,000. Each such installment shall be due and payable on the first
day of each month, commencing on the first day of the first month
following the SPC Non-Recourse Refinancing Deadline, and continuing on
the first day of each succeeding month until the earlier of (x) the
date on which the unpaid balance of Term Loan A is paid in full, or
(y) the Maturity Date. The
25
remaining outstanding principal balance and all accrued and unpaid
interest under Term Loan A shall be due and payable upon the
termination of this Agreement, whether by its terms, by prepayment, by
acceleration, or otherwise.
e. Section 2.10 of the Loan Agreement hereby is
amended by adding the following subsection thereto:
(f) Third Amendment Fee. A one time fee of
$50,000 which is earned, in full, on the Third Amendment Closing Date
and is due and payable by Borrower to Foothill in connection with this
Agreement on the Third Amendment Closing Date.
f. Section 3.7 of the Loan Agreement hereby is
amended and restated in its entirety as follows:
3.7 EARLY TERMINATION BY BORROWER. Borrower has
the option, at any time upon 45 days prior written notice to Foothill,
to terminate this Agreement by paying to Foothill, in cash, the
Obligations, in full, together with a premium (the "Early Termination
Premium") equal to the sum of (a) $50,000 (which amount shall be in
addition to the Exit Fee that is then due and payable) plus (b)
$50,000 if Borrower terminates this Agreement pursuant to the
provisions of this section prior to July 1, 1998.
g. Clause (a) of Section 3.9 of the Loan
Agreement hereby is amended and restated in its entirety as follows:
(a) the aggregate amount of re-advances
under Term Loan A shall not exceed $10,000,000 (i.e., Term Loan A may
only be re-borrowed once in the aggregate), and the aggregate
outstanding principal balance of Term Loan A shall not at any time
exceed the Term Loan A Commitment;
h. The first sentence of Section 7.4 of the Loan
Agreement hereby is amended and restated in its entirety as follows:
Except for Permitted Dispositions and the SPC
Transfer, sell, lease, assign, transfer, or otherwise dispose of any
of any Debtor's properties or assets; provided, however, that any
Operating Subsidiary may transfer Personal Property Collateral to any
Debtor of which it is a Subsidiary (but not to any other Debtor).
i. Section 7.8 of the Loan Agreement hereby is
amended and restated in its entirety as follows:
26
7.8 PREPAYMENTS AND AMENDMENTS.
Except for the Permitted Transactions, and
except in connection with a refinancing permitted by Section 7.1(F),
prepay, redeem, retire, defease, purchase, or otherwise acquire any
indebtedness owing to any third Person, other than the Obligations in
accordance with this Agreement, and (b) directly or indirectly, amend,
modify, alter, increase, or change any of the terms or conditions of
any agreement, instrument, document, indenture, or other writing
evidencing or concerning indebtedness permitted under Sections
7.1(B), (c), (d), or (e). Without limiting the generality of the
foregoing, except for Permitted Ten Percent Debenture Repurchases and
Permitted MEIH Subordinated Debt Payments, at no time shall Borrower
make any (y) payment with respect to any Subordinated Debt if the
making of same would conflict with the subordination provisions
thereof, or (z) cash payment of principal with respect to the NEF
Debentures.
j. Section 8.11 of the Loan Agreement hereby is
amended and restated in its entirety as follows:
8.11 If Borrower makes any payment on account of
Indebtedness that has been contractually subordinated in right of
payment to the payment of the Obligations, (a) except to the extent
such payment is permitted by the terms of the subordination provisions
applicable to such Indebtedness, and (b) except for Permitted Ten
Percent Debenture Repurchases and Permitted MEIH Subordinated Debt
Payments; or
k. Exhibit I of the Loan Agreement is hereby
amended, restated, and replaced in its entirety by the Amended and Restated
Exhibit I attached hereto.
l. Schedule R-1 of the Loan Agreement is hereby
amended, restated, and replaced in its entirety by the Amended and Restated
Schedule R-1 attached hereto.
2. Conditions Precedent 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:
a. Foothill shall have received a certificate of
the 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;
b. 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 date
hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);
c. 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
27
occurred and be continuing on the date hereof, nor shall result from the
consummation of the transactions contemplated herein;
d. 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;
e. No material adverse change shall have
occurred in the financial condition of Borrower or in the value of the
Collateral;
f. Foothill shall have received evidence
satisfactory to it that, contemporaneously with the Third Amendment Closing
Date, SPC shall receive the loan proceeds pursuant to the SPC Non-Recourse
Financing extended to SPC by a third party lender on terms and conditions
satisfactory to Foothill in its reasonable discretion;
g. Foothill shall have received each of the
following documents, in form and substance satisfactory to Foothill and its
counsel, duly executed, and each such document shall be in full force and
effect:
(1) the Amended and Restated
Subordination Agreement; and
(2) this Amendment;
h. Foothill shall have received the form of
Amended and Restated Subordinated Promissory Note, in form and substance
satisfactory to Foothill and its counsel.
i. Foothill shall have completed a satisfactory
review of the loan agreement and any such other agreements and/or documents
related to the SPC Non-Recourse Financing as are requested by Foothill in its
reasonable discretion;
j. Foothill shall have received the Third
Amendment Fee of $50,000;
k. Foothill shall have received a principal
payment for application to the outstanding principal balance of Term Loan A in
an amount equal to the greater of (i) $2,500,000 or (ii) an amount equal to the
amount required to repay the aggregate outstanding principal balance of Term
Loan A in excess of $10,000,000; and
l. All other documents and legal matters in
connection with the transactions contemplated by this Amendment shall have been
delivered or executed or recorded and shall be in form and substance
satisfactory to Foothill and its counsel.
3. Permitted MEIH Subordinated Debt. Foothill hereby
(i) consents to the incurrence by MEWI or up to $30,000,000 in aggregate
principal amount of Indebtedness to MEIH on the terms set forth on the Amended
and Restated Subordinated Promissory Note,
28
and (ii) agrees that such Indebtedness shall constitute permitted "Future
Subordinated Indebtedness" approved by Foothill in accordance with the Loan
Agreement.
4. Reconveyance Transaction. Upon the fulfillment, to
the satisfaction of Foothill and its counsel, of each of the conditions of
Section 2 of this Amendment, Foothill shall perform the Reconveyance
Transaction.
5. Condition Subsequent. As a condition subsequent to
the effectiveness of this Third Amendment, Borrower shall perform or cause to
be performed the following (the failure by Borrower to so perform or cause to
be performed on the expiry of the applicable period provided therefor
constituting an Event of Default, but the failure to perform during the period
prior to the expiration of the applicable period provided therefor shall not
constitute a Default):
a. Within 30 days of the Third Amendment Closing
Date, Foothill and Borrower shall have entered into the Charlotte, North
Carolina Mortgage, in form and substance satisfactory to Foothill and its
counsel, duly executed by each respective party, and such document shall be in
full force and effect.
29
b. Within 45 days of the Third Amendment Closing
Date, Foothill and Borrower shall have amended the Loan Agreement to reflect
modifications to Section 7.19 of the Loan Agreement, such modifications to be
in form and substance satisfactory to Foothill in its reasonable discretion.
Anything in this section to the contrary notwithstanding, the failure of
Borrower to enter into the amendment described herein prior to the expiration
of the applicable period provided herein shall not constitute an Event of
Default; and
c. Within 90 days of the Third Amendment Closing
Date, Foothill and Borrower shall have entered into such mortgages and deeds of
trust in respect of Borrower's leasehold estates in respect of which a
leasehold mortgage may be granted, as Foothill shall reasonably request, in
form and substance satisfactory to Foothill in its reasonable discretion, and
the Borrower hereby agrees to make reasonable, good faith, efforts to obtain
the consent of the lessor to the granting of such leasehold mortgages.
6. 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 governmental 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, constitute Borrower's legal,
valid, and binding obligation, enforceable against Borrower in accordance with
its terms.
7. 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.
8. Effect on Loan Agreement. The Loan Agreement, as
amended hereby, shall be and remain in full force and effect in accordance with
its respective terms and hereby is ratified and confirmed in all respects. The
execution, delivery, and performance of this Amendment shall not operate as a
waiver of or, except as expressly set forth herein, as an amendment, of any
right, power, or remedy of Lender under the Loan Agreement, as in effect prior
to the date hereof.
9. Miscellaneous.
a. Upon the effectiveness of this Amendment,
each reference in the Agreement to "this Agreement", "hereunder", "herein",
"hereof" or words of like import referring to the Agreement shall mean and
refer to the Loan Agreement as amended by the First Amendment, the Second
Amendment, and this Amendment.
30
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 Agreement shall
mean and refer to the Loan Agreement as amended by the First Amendment, the
Second 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.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed in on the date first written above. MALIBU
ENTERTAINMENT WORLDWIDE, INC., a Georgia corporation MOUNTASIA FAMILY
ENTERTAINMENT CENTERS, INC., a Texas corporation
By:
----------------------------------------
Name:
----------------------------
Title:
----------------------------
31
MOUNTASIA MANAGEMENT COMPANY, a Georgia corporation
MOUNTASIA PARTNERS I, INC., a Georgia corporation
MALIBU GRAND PRIX CORPORATION, a Delaware corporation
MIAMI CASTLE MGPC, INC., a Florida corporation
TEMPE MGPC, INC., an Arizona corporation
TUCSON MGPC, INC., an Arizona corporation
FRESNO MGPC, INC., a California corporation
NORTH HOLLYWOOD CASTLE MGPC, INC., a California 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
REDWOOD CITY MGPC, INC., a California corporation
SAN DIEGO MGPC, INC., a California corporation
DENVER MGPC, INC., a Colorado corporation
XXXXXXX XXXXXX MGPC, INC., a Florida corporation
ORLANDO MGPC, INC., a Florida corporation
TAMPA CASTLE MGPC, INC., a Florida corporation
TAMPA MGPC, INC., a Florida corporation
LENEXA MGPC, INC., a Kansas corporation
MT. LAUREL MGPC, INC., a New Jersey corporation
COLUMBUS MGPC, INC., an Ohio corporation
CINCINNATI MGPC, INC., an Ohio corporation
PORTLAND MGPC, INC., an Oregon corporation
AUSTIN MGPC, INC., a Texas corporation
DALLAS CASTLE MGPC, INC., a Texas corporation
DALLAS MGPC, INC., a Texas corporation
HOUSTON CASTLE MGPC, INC., a Texas corporation
HOUSTON II 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
32
MOUNTASIA - MEI INTERNATIONAL, INC., a Georgia corporation, in its capacity as
general partner of MOUNTASIA - MEI CALIFORNIA LIMITED PARTNERSHIP, a California
limited partnership
MOUNTASIA - MEI MANUFACTURING COMPANY, INC., a Georgia corporation
AMUSEMENT CO., INC., a Delaware corporation
AMUSEMENT CO. PARTNERS, INC., a Delaware corporation
By:
----------------------------------------
Name:
----------------------------
Title:
----------------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
----------------------------------------
Name:
----------------------------
Title:
----------------------------
33
AMENDED AND RESTATED EXHIBIT I
MALIBU ENTERTAINMENT WORLDWIDE, INC.
FUNCENTERS
LOCATION FEE SIMPLE LEASE COMMENTS
MOUNTASIA FUNCENTERS:
North Xxxx, GA X
Henderson, NV X
(NEF Acquisition)
Columbus, OH X
Spartanburg, SC X
Arlington, TX X
Houston, TX X
Kingwood, TX X Encumbered (FCC 2nd lien)
McAllen, TX X
(NEF Acquisition)
Plano, TX X
Willowbrook, TX X Encumbered (FCC no lien)
TOTAL MOUNTASIA FUNCENTERS: 8 + = 10 (1 Encumbered)
2
MALIBU GRAND PRIX FUNCENTERS:
Xxxxx Xxxxxxxxx, XX X
Xxxxxx Xxxxx, XX X Encumbered (FCC no lien)
Xxxxxxx Xxxxx, XX X
Xxxxxxx Xxxx, XX X
Denver, CO X
Miami, FL (NEF Acquisition) X
Orlando, FL X
Tampa, FL X
Kennesaw, GA X
Norcross, GA X
Lenexa, KS X
Mount Laurel, NJ X
Cincinnati, OH X
Columbus, OH X
Portland, OR X
Austin, TX X
Dallas, TX X
San Antonio, TX X
TOTAL MALIBU GRAND PRIX FUNCENTERS: 5 + 13 = 18 (1 Encumbered)
LAND TO BE DEVELOPED:
Arlington, Texas X Encumbered (FCC no lien)
Charlotte, North Carolina X
TOTAL LAND TO BE DEVELOPED: 2 + 0 = 2 (1 Encumbered)
TOTAL COMBINED FACILITIES: 15 + 15 = 30 (4 Encumbered)
34
SCHEDULE R-1
REAL PROPERTY COLLATERAL
FACILITY LOCATIONS - FEES:
The following fee simple interests:
Mountasia FunCenters: Malibu FunCenters:
Mountasia of Columbus Tampa Castle MGPC, Inc.
0000 Xxxx Xxxxxx Xxxxxxxxx Xxxx 00000 X. Xxxxxxxx
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
Mountasia of North Xxxx Miami Castle MGPC, Inc.
000 Xxxxxx Xxxxxxx Xxxxxxx 0000 XX 0xx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
Mountasia of Houston Mountasia Malibu/Gwinnett
11175 Katy Freeway 0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Mountasia of Arlington Mountasia Malibu/Kennesaw
1111 Wet 'n Wild Way 0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Mountasia of Plano
0000 Xxxxxxx Xxxxx
Xxxxx, XX 00000
Mountasia of Kingwood
0000 Xxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Mountasia of Spartanburg
000 Xxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
35
FACILITY LOCATIONS - LEASEHOLDS
The 15 leasehold estates relating to the 15 leasehold locations described on
the amended and restated Exhibit I.
LAND TO BE DEVELOPED LOCATIONS:
Charlotte Property
located near the intersection of Sugar Creek Road and Interstate 85
Charlotte, North Carolina
ENCUMBERED REAL PROPERTY COLLATERAL:
Mountasia of Xxxxxx Hills
17871-17909 Xxxxxxxxx Xxxxxx
Xxxx xx Xxxxxxxx, XX 00000
Mountasia of Willowbrook
00000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Arlington Property
0000 Xxxx Xxxxx Xxxx.
Xxxxxxxxx, Xxxxx 00000-0000
36
AMENDMENT NUMBER FOUR TO CONSOLIDATED, AMENDED, AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER FOUR TO CONSOLIDATED, AMENDED, AND
RESTATED LOAN AND SECURITY AGREEMENT (this "Amendment"), is entered into as of
March 31, 1998, between FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), with a place of business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, MALIBU ENTERTAINMENT WORLDWIDE,
INC., a Georgia corporation ("MEWI"), with its chief executive office located
at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, MOUNTASIA MANAGEMENT COMPANY, a
Georgia corporation ("MMC"), with its chief executive office located at 000
Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, MOUNTASIA PARTNERS I, INC., a Georgia
corporation ("MPI"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX CORPORATION, a Delaware
corporation ("MGPC"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, MIAMI CASTLE MGPC, INC., a Florida corporation
("Miami"), with its chief executive office located at 000 Xxxxx Xxxxxxxx,
Xxxxxx, Xxxxx 00000, TEMPE MGPC, INC., an Arizona corporation ("Tempe"), with
its chief executive office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000,
TUCSON MGPC, INC., an Arizona corporation ("Tucson"), with its chief executive
office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, FRESNO MGPC, INC., a
California corporation ("Fresno"), with its chief executive office located at
000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, NORTH HOLLYWOOD CASTLE MGPC, INC., a
California corporation ("NHC"), with its chief executive office located at 000
Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, XXXXXX HILLS MGPC, INC., a California
corporation ("PH"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, XXXXXX HILLS SHOWBOAT MGPC, INC., a California
corporation ("PHS"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, REDONDO BEACH CASTLE MGPC, INC., a California
corporation ("RBC"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, REDWOOD CITY CASTLE MGPC, INC., a California
corporation ("RCC"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, REDWOOD CITY MGPC, INC., a California
corporation ("RC"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, SAN DIEGO MGPC, INC., a California corporation
("San Diego"), with its chief executive office located at 000 Xxxxx Xxxxxxxx,
Xxxxxx, Xxxxx 00000, DENVER MGPC, INC., a Colorado corporation ("Denver"), with
its chief executive office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000,
XXXXXXX XXXXXX MGPC, INC., a Florida corporation ("OC"), with its chief
executive office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, ORLANDO
MGPC, INC., a Florida corporation ("Orlando"), with its chief executive office
located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, TAMPA CASTLE MGPC, INC., a
Florida corporation ("TC"), with its chief executive office located at 000
Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, TAMPA MGPC, INC., a Florida corporation
("Tampa"), with its chief executive office located at 000 Xxxxx Xxxxxxxx,
Xxxxxx, Xxxxx 00000, LENEXA MGPC, INC., a Kansas corporation ("Lenexa"), with
its chief executive office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx
37
75201, MT. LAUREL MGPC, INC., a New Jersey corporation ("Mt.Laurel"), with its
chief executive office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000,
COLUMBUS MGPC, INC., an Ohio corporation ("Columbus"), with its chief executive
office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, CINCINNATI MGPC,
INC., an Ohio corporation ("Cincinnati"), with its chief executive office
located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, PORTLAND MGPC, INC., an
Oregon corporation ("Portland"), with its chief executive office located at 000
Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, AUSTIN MGPC, INC., a Texas corporation
("Austin"), with its chief executive office located at 000 Xxxxx Xxxxxxxx,
Xxxxxx, Xxxxx 00000, DALLAS CASTLE MGPC, INC., a Texas corporation ("DC"), with
its chief executive office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000,
DALLAS MGPC, INC., a Texas corporation ("Dallas"), with its chief executive
office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, HOUSTON CASTLE MGPC,
INC., a Texas corporation ("HC"), with its chief executive office located at
000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, HOUSTON II MGPC, INC., a Texas
corporation ("Houston"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, SAN XXXXXXX XXXXXX MGPC, INC., a Texas
corporation ("SAC"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, SAN ANTONIO MGPC, INC., a Texas corporation
("San Antonio"), with its chief executive office located at 000 Xxxxx Xxxxxxxx,
Xxxxxx, Xxxxx 00000, MOUNTASIA DEVELOPMENT COMPANY, a Georgia corporation
("MDC"), with its chief executive office located at 000 Xxxxx Xxxxxxxx, Xxxxxx,
Xxxxx 00000, MALIBU GRAND PRIX DESIGN & MANUFACTURING, INC., a California
corporation ("MGPDMI"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX FINANCIAL SERVICES, INC., a
California corporation ("MGPFSI"), with its chief executive office located at
000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, OFF TRACK MANAGEMENT, INC., a
California corporation ("Off Track"), with its chief executive office located
at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, MGP SPECIAL, INC., a California
corporation ("Special"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, AMUSEMENT MANAGEMENT FLORIDA, INC., a Florida
corporation ("Amusement"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX CONSULTING, INC., a California
corporation ("Consulting"), with its chief executive office located at 000
Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI INTERNATIONAL, INC., a
Georgia corporation ("MMEII"), with its chief executive office located at 000
Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI LIMITED COMPANY, INC., a
California corporation ("MMEILC"), with its chief executive office located at
000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI CALIFORNIA, INC., a
California corporation ("MCNC"), with its chief executive office located at 000
Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI CALIFORNIA LIMITED
PARTNERSHIP, a California limited partnership ("MMEICLP"), with its chief
executive office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, MOUNTASIA
- MEI MANUFACTURING COMPANY, INC., a Georgia corporation ("MMEIMCI"), with its
chief executive office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000,
AMUSEMENT CO., INC., a Delaware corporation ("ACI"), with its chief executive
office located at 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000, AMUSEMENT CO.
PARTNERS, INC., a Delaware corporation ("ACPI"), with its chief executive
office located at 000 Xxxxx Xxxxxxxx, Xxxxxx,
00
Xxxxx 00000, and MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a Texas
corporation ("MFEC"), with its chief executive office located at 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000.
WHEREAS Foothill and Borrower are parties to the Consolidated,
Amended, and Restated Loan and Security Agreement, entered into as of August
22, 1996, (as amended to date, the "Loan Agreement");
WHEREAS Borrower has requested Foothill to amend the Loan
Agreement and the other Loan Documents to (i) reflect the relocation of the
chief executive office of Borrower and each of its Subsidiaries to 000 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000, and (ii) to revise the financial covenants with
respect to minimum Debt Service Ratio and the minimum Interest Coverage Ratio;
WHEREAS Borrower has requested Foothill consent to (i)
increase the maximum aggregate principal amount of Permitted MEIH Subordinated
Debt from $30,000,000 to $65,000,000, (ii) to increase the interest rate on
Permitted MEIH Subordinated Debt to 10%, (iii) to increase in the maximum
amount of MEIH Current Advances from $9,500,000 to $10,000,000, and (iv) to
increase the interest rate and extend the maturity of MEIH Current Advances
Payments to correspond to the Borrower's credit facility with Nomura Asset
Capital Corporation;
WHEREAS Foothill has agreed to consent to the forgoing and to
amend the Loan Agreement and the other Loan Documents in accordance with the
terms hereof upon Borrower's payment of an Amendment Fee of $5,000 and subject
to the other terms and conditions hereof;
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. Each of the references in the initial
paragraph of the Loan Agreement and in any other section thereof to "5895
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000" hereby are deleted in
their entirety and replaced with "717 Xxxxx Xxxxxxxx, Xxxxxx, Xxxxx 00000."
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:
"Amended and Restated Subordinated Promissory Note
means that certain Second Amended and Restated Subordinated Promissory
Note dated as of
39
March 27, 1998 issued by MEWI in favor of MEIH, subject to the terms
and conditions of the Amended and Restated Subordination Agreement, in
the form attached hereto as Amended and Restated Annex A".
"Current MEIH Advances means advances (other than
Permitted MEIH Subordinated Debt) made by MEIH to MEWI and made on or
prior to the Fourth Amendment Closing Date, but not to exceed
$10,000,000 in aggregate principal amount (and accrued interest
thereon at a rate per annum not to exceed LIBOR plus 3.50% (or,
following the occurrence of an event of default, 5.0%)), and evidenced
by the Amended and Restated MEIH Current Advances Promissory Note".
"Fourth Amendment means that certain Amendment Number
Four to Consolidated, Amended, and Restated Loan and Security
Agreement, dated as of March 31, 1998, between Foothill and Borrower".
"Fourth Amendment Closing Date" means March 31, 1998".
"Permitted MEIH Current Advances Payments means, so
long as no Event of Default has occurred and is continuing, one or
more payments to MEIH, in an amount not to exceed $10,000,000 in
aggregate principal amount (and accrued interest thereon at a rate per
annum not to exceed LIBOR plus 3.50% (or, following the occurrence of
an event of default, 5.0%)), made in connection with the repayment or
the prepayment of Current MEIH Advances extended to Borrower by MEIH;
provided that, in no event, shall such payment be made with Net Cash
Proceeds to the extent constituting a Required Amount".
"Permitted MEIH Subordinated Debt means any
Indebtedness constituting a "Subordinated Obligation" under and as
defined in the Amended and Restated Subordination Agreement among
MEWI, MEIH, and Foothill in an aggregate principal amount of up to
$65,000,000 and evidenced by the Amended and Restated Subordinated
Promissory Note".
c. Section 1.1 of the Loan Agreement hereby is
amended by adding the following definition in alphabetical order:
"Amended and Restated MEIH Current Advances
Promissory Note means that certain Amended and Restated Promissory
Note dated as of March 27, 1998 issued by MEIW in favor of MEIH, in
the form attached hereto as Annex B".
d. Clause (a) of Section 7.19 of the Loan
Agreement hereby is amended and restated in its entirety as follows:
"(a) Debt Service Ratio. A Debt Service
Ratio for the Relevant Measuring Period of not less than the relevant
amount set forth in the following table, measured on a fiscal
quarter-end basis:
40
Period Ending Minimum Ratio
------------- -------------
12/31/97 (4.0) : 1.0
e. Clause (d) of Section 7.19 of the Loan
Agreement hereby is amended and restated in its entirety as follows:
"(b) Interest Coverage Ratio. An
Interest Coverage Ratio for the 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 Ratio
------------- -------------
12/31/97 (5.0) : 1.0
f. The notice address for MEWI contained in
Section 12 of the Loan Agreement hereby is amended and restated in its entirety
as follows:
"IF TO BORROWER: C/O MALIBU ENTERTAINMENT
WORLDWIDE, INC.
000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxx X. XxxxXxxxxxx
Title: Vice President
Fax No. 000.000.0000"
g. Annex A of the Loan Agreement is hereby
amended, restated, and replaced in its entirety by the Amended and Restated
Annex A attached hereto.
h. Annex B is hereby added in its entirety to
the Loan Agreement in the form of Annex B attached hereto.
i. Each of the references contained in any other
Loan Document to "5895 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000"
hereby is deleted in its entirety and deemed to be replaced with "717 Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxx 00000."
j. Each of the references contained in any other
Loan Document to the facsimile telephone number of "000.000.0000" hereby is
deleted in its entirety and deemed to be replaced with "214.210.8752".
2. Conditions Precedent 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:
a. Foothill shall have received a certificate of
the Secretary of Borrower attesting to the resolutions of Borrower's Board of
Directors authorizing the
41
execution, delivery, and performance of the Loan Agreement as amended by this
Amendment and authorizing the specific officers of Borrower to execute same;
b. 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 date
hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);
c. 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;
d. 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;
e. 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;
f. Foothill shall have received this duly
executed Amendment, which shall be in full force and effect;
g. Foothill shall have received the form of the
Second Amended and Restated Subordinated Promissory Note, in form and substance
satisfactory to Foothill and its counsel;
h. Foothill shall have received the form of the
Amended and Restated MEIH Current Advances Promissory Note, in form and
substance satisfactory to Foothill and its counsel;
i. Foothill shall have received the Fourth
Amendment Fee of $5,000; and
j. All other documents and legal matters in
connection with the transactions contemplated by this Amendment shall have been
delivered or executed or recorded and shall be in form and substance
satisfactory to Foothill and its counsel.
3. Permitted MEIH Subordinated Debt. Foothill hereby
(i) consents to the incurrence by MEWI of up to $65,000,000 in aggregate
principal amount of Indebtedness to MEIH on the terms set forth on the Amended
and Restated Subordinated Promissory Note, and (ii) agrees that such
Indebtedness shall constitute permitted "Future Subordinated Indebtedness"
approved by Foothill in accordance with the Loan Agreement.
42
4. Permitted Current MEIH Advances. Foothill hereby (i)
consents to the incurrence by MEWI of up to $10,000,000 in aggregate principal
amount of Indebtedness to MEIH on the terms set forth on the Amended and
Restated Current MEIH Advances Promissory Note, and (ii) agrees that such
Indebtedness shall constitute permitted "Current MEIH Advances" approved by
Foothill in accordance with the Loan Agreement.
5. Waiver. Foothill hereby waives any Default or Event
of Default existing prior to the effectiveness of this Amendment and arising in
respect of any provisions of the Loan Agreement or the other Loan Documents
amended by, or as a result of the incurrence of any Indebtedness consented to
under, this Amendment.
6. Condition Subsequent. As a condition subsequent to
the effectiveness of this Fourth Amendment, Borrower shall perform or cause to
be performed the following (the failure by Borrower to so perform or cause to
be performed on the expiry of the applicable period provided therefor
constituting an Event of Default, but the failure to perform during the period
prior to the expiration of the applicable period provided therefor shall not
constitute a Default):
a. Within 30 days of the Fourth Amendment
Closing Date, Foothill and Borrower shall have submitted a revised business
plan to Foothill, in form and substance satisfactory to Foothill;
b. Within 60 days of the Fourth Amendment
Closing Date, Foothill and Borrower shall have amended the Loan Agreement to
reflect modifications to Section 7.19 of the Loan Agreement to reflect the
revised business plan, such modifications to be in form and substance
satisfactory to Foothill in its reasonable discretion. Anything in this
section to the contrary notwithstanding, the failure of Borrower to enter into
the amendment described herein prior to the expiration of the applicable period
provided herein shall not constitute a Default or an Event of Default; and
c. Within 90 days of the Fourth Amendment
Closing Date, Foothill and Borrower shall have entered into such mortgages and
deeds of trust in respect of Borrower's leasehold estates in respect of which a
leasehold mortgage may be granted, as Foothill shall reasonably request, in
form and substance satisfactory to Foothill in its reasonable discretion, and
the Borrower hereby agrees to make reasonable, good faith, efforts to obtain
the consent of the lessor to the granting of such leasehold mortgages.
7. 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 governmental 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, constitute Borrower's legal,
valid, and binding obligation, enforceable against Borrower in accordance with
its terms.
43
8. 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.
9. Effect on Loan Documents. The Loan Agreement and the
other Loan Documents, as amended hereby, shall be and remain in full force and
effect in accordance with its respective terms and each hereby is ratified and
confirmed in all respects. Except as expressly set 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 Lender under the
Loan Agreement, as in effect prior to the date hereof.
10. Miscellaneous.
a. Upon the effectiveness of this Amendment,
each reference in the Agreement to "this Agreement", "hereunder", "herein",
"hereof" or words of like import referring to the Agreement shall mean and
refer to the Loan Agreement as amended by the First Amendment, the Second
Amendment, the Third 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 Agreement shall
mean and refer to the Loan Agreement as amended by the First Amendment, the
Second Amendment, the Third 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.
[Remainder of page intentionally left blank.]
44
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed in on the date first written above.
MALIBU ENTERTAINMENT WORLDWIDE, INC., a Georgia corporation
MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a Texas corporation
By: /s/ XXXXXXX X. XXXXXXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
----------------------------
Title: Vice President
---------------------------
MOUNTASIA MANAGEMENT COMPANY, a Georgia corporation
MOUNTASIA PARTNERS I, INC., a Georgia corporation
MALIBU GRAND PRIX CORPORATION, a Delaware corporation
MIAMI CASTLE MGPC, INC., a Florida corporation
TEMPE MGPC, INC., an Arizona corporation
TUCSON MGPC, INC., an Arizona corporation
FRESNO MGPC, INC., a California corporation
NORTH HOLLYWOOD CASTLE MGPC, INC., a California 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
REDWOOD CITY MGPC, INC., a California corporation
SAN DIEGO MGPC, INC., a California corporation
DENVER MGPC, INC., a Colorado corporation
XXXXXXX XXXXXX MGPC, INC., a Florida corporation
ORLANDO MGPC, INC., a Florida corporation
TAMPA CASTLE MGPC, INC., a Florida corporation
TAMPA MGPC, INC., a Florida corporation
LENEXA MGPC, INC., a Kansas corporation
MT. LAUREL MGPC, INC., a New Jersey corporation
COLUMBUS MGPC, INC., an Ohio corporation
45
CINCINNATI MGPC, INC., an Ohio corporation
PORTLAND MGPC, INC., an Oregon corporation
AUSTIN MGPC, INC., a Texas corporation
DALLAS CASTLE MGPC, INC., a Texas corporation
DALLAS MGPC, INC., a Texas corporation
HOUSTON CASTLE MGPC, INC., a Texas corporation
HOUSTON II 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
MOUNTASIA - MEI MANUFACTURING COMPANY, INC., a Georgia corporation
AMUSEMENT CO., INC., a Delaware corporation
AMUSEMENT CO. PARTNERS, INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
----------------------------
Title: Vice President
---------------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ XXXXXX XXXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxxx
----------------------------
Title: Vice President
---------------------------
46
AMENDMENT NUMBER FIVE TO CONSOLIDATED, AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER FIVE TO CONSOLIDATED, AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT (THIS "AMENDMENT"), is entered into as of
June 30, 1998, between FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), with a place of business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, MALIBU ENTERTAINMENT WORLDWIDE,
INC., a Georgia corporation ("MEWI"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA MANAGEMENT
COMPANY, a Georgia corporation ("MMC"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA PARTNERS I,
INC., a Georgia corporation ("MPI"), with its chief executive office located at
000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX
CORPORATION, a Delaware corporation ("MGPC"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MIAMI CASTLE
MGPC, INC., a Florida corporation ("Miami"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, TEMPE MGPC,
INC., an Arizona corporation ("Tempe"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, TUCSON MGPC, INC., an
Arizona corporation ("Tucson"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, FRESNO MGPC, INC., a California
corporation ("Fresno"), with its chief executive office located at 000 Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, NORTH HOLLYWOOD CASTLE MGPC, INC., a
California corporation ("NHC"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, XXXXXX HILLS MGPC, INC., a
California corporation ("PH"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, XXXXXX HILLS SHOWBOAT MGPC,
INC., a California corporation ("PHS"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, REDONDO BEACH CASTLE
MGPC, INC., a California corporation ("RBC"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, REDWOOD CITY
CASTLE MGPC, INC., a California corporation ("RCC"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, REDWOOD
CITY MGPC, INC., a California corporation ("RC"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, SAN DIEGO
MGPC, INC., a California corporation ("San Diego"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, DENVER
MGPC, INC., a Colorado corporation ("Denver"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, XXXXXXX XXXXXX
MGPC, INC., a Florida corporation ("OC"), with its chief executive office
located at 000 Xxxxx Xxxxxxx,
00
Xxxxx 0000, Xxxxxx, Xxxxx 00000, ORLANDO MGPC, INC., a Florida corporation
("Orlando"), with its chief executive office located at 000 Xxxxx Xxxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, TAMPA CASTLE MGPC, INC., a Florida corporation
("TC"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, TAMPA MGPC, INC., a Florida corporation ("Tampa"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, LENEXA MGPC, INC., a Kansas corporation ("Lenexa"), with
its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, MT. LAUREL MGPC, INC., a New Jersey corporation ("Mt.Laurel"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, COLUMBUS MGPC, INC., an Ohio corporation ("Columbus"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, CINCINNATI MGPC, INC., an Ohio corporation ("Cincinnati"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, PORTLAND MGPC, INC., an Oregon corporation ("Portland"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, AUSTIN MGPC, INC., a Texas corporation ("Austin"), with
its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, DALLAS CASTLE MGPC, INC., a Texas corporation ("DC"), with its
chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, DALLAS MGPC, INC., a Texas corporation ("Dallas"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
HOUSTON CASTLE MGPC, INC., a Texas corporation ("HC"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, HOUSTON
II MGPC, INC., a Texas corporation ("Houston"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, SAN XXXXXXX
XXXXXX MGPC, INC., a Texas corporation ("SAC"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, SAN ANTONIO
MGPC, INC., a Texas corporation ("San Antonio"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA
DEVELOPMENT COMPANY, a Georgia corporation ("MDC"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MALIBU
GRAND PRIX DESIGN & MANUFACTURING, INC., a California corporation ("MGPDMI"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX FINANCIAL SERVICES, INC., a California
corporation ("MGPFSI"), with its chief executive office located at 000 Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, OFF TRACK MANAGEMENT, INC., a
California corporation ("Off Track"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MGP SPECIAL, INC., a
California corporation ("Special"), with its chief executive office located at
000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, AMUSEMENT MANAGEMENT
FLORIDA, INC., a Florida corporation ("Amusement"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MALIBU
GRAND PRIX CONSULTING, INC., a California corporation ("Consulting"), with its
-2-
48
chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, MOUNTASIA - MEI INTERNATIONAL, INC., a Georgia corporation ("MMEII"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI LIMITED COMPANY, INC., a California
corporation ("MMEILC"), with its chief executive office located at 000 Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI CALIFORNIA, INC., a
California corporation ("MCNC"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI CALIFORNIA
LIMITED PARTNERSHIP, a California limited partnership ("MMEICLP"), with its
chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, MOUNTASIA - MEI MANUFACTURING COMPANY, INC., a Georgia corporation
("MMEIMCI"), with its chief executive office located at 000 Xxxxx Xxxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, AMUSEMENT CO., INC., a Delaware corporation
("ACI"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, AMUSEMENT CO. PARTNERS, INC., a Delaware corporation
("ACPI"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, and MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a
Texas corporation ("MFEC"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000.
WHEREAS Foothill and Borrower are parties to the Consolidated,
Amended, and Restated Loan and Security Agreement, entered into as of August
22, 1996, (as amended to date, the "Loan Agreement");
WHEREAS Borrower has requested Foothill to amend the Loan
Agreement and the other Loan Documents to (i) permanently amend the definition
of Adjusted Net Worth, (ii) revise the financial covenants with respect to the
minimum Debt Service Ratio, the maximum Total Liabilities to Adjusted Net Worth
Ratio, the minimum Adjusted Net Worth, and the minimum Interest Coverage Ratio,
and (iii) waive Borrower's failure to comply with the requirements of Sections
2.12, 7.19(a), and 7.19(d) of the Loan Agreement;
WHEREAS Foothill is willing to so amend the Loan Agreement and
waive Borrower's failure to comply with the requirements of Sections 2.12,
7.19(a), and 7.19(d) of the Loan Agreement in accordance with the terms hereof
upon Borrower's payment of an Amendment Fee of $15,000 and subject to the other
terms and conditions hereof;
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.
-3-
49
1. Amendments to the Loan Agreement.
a. 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:
"Adjusted Net Worth means, as of any date of
determination, the sum of (a) the difference of (i) Borrower's total
stockholder's equity, minus (ii) the sum of (w) all Intangible Assets
of Borrower, (x) all of Borrower's prepaid expenses, (y) all amounts
due to Borrower from non-Borrower Affiliates, calculated on a
consolidated basis, and (z) all investments in partnerships or joint
ventures, plus, without duplication of any amount included in clause
(a), (b) the aggregate issue price of outstanding preferred Securities
and the aggregate principal amount of Existing Subordinated Debt of
MEWI."
"Fifth Amendment means that certain Amendment Number
Five to Consolidated, Amended, and Restated Loan and Security
Agreement, dated as of June 30, 1998, between Foothill and Borrower."
"Fifth Amendment Closing Date means June 30, 1998."
"Relevant Measuring Period means, with respect to
June 30, 1998, the three months then ended, with respect to September
30, 1998, the six months then ended, with respect to December 31,
1998, the nine months then ended, and, with respect to any date
thereafter, the twelve months then ended."
b. Clause (a) of Section 7.19 of the Loan
Agreement hereby is amended and restated in its entirety as follows:
"(a) Debt Service Ratio. A Debt Service
Ratio for the Relevant Measuring Period of not less than the relevant
amount set forth in the following table, measured on a fiscal
quarter-end basis:
Period Ending Minimum Ratio
------------- -------------
6/30/98 0.0 : 1
9/30/98 0.0 : 1
12/31/98 0.0 : 1
3/31/99 0.0 : 1
6/30/99 0.0 : 1
9/30/99 1.0 : 1
As of the end of each quarter thereafter 1.0 : 1
-4-
50
c. Clause (b) of Section 7.19 of the Loan
Agreement hereby is amended and restated in its entirety as follows:
"(b) Total Liabilities to Adjusted Net
Worth Ratio. A ratio of Borrower's total liabilities (exclusive of
Existing Subordinated Debt) divided by Adjusted Net Worth of 2.0:1.0,
or less, measured on a fiscal quarter-end basis;"
d. Clause (c) of Section 7.19 of the Loan
Agreement hereby is amended and restated in its entirety as follows:
"(c) Adjusted Net Worth. Adjusted Net
Worth of at least $40,000,000, measured on a fiscal quarter-end basis;
and"
e. Clause (d) of Section 7.19 of the Loan
Agreement hereby is amended and restated in its entirety as follows:
"(b) Interest Coverage Ratio. An
Interest Coverage Ratio for the 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 Ratio
------------- -------------
6/30/98 0.0 : 1
9/30/98 0.0 : 1
12/31/98 0.0 : 1
3/31/99 0.0 : 1
6/30/99 0.0 : 1
9/30/99 2.0 : 1
As of the end of each quarter thereafter 2.0 : 1
-5-
51
2. Conditions Precedent 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:
a. 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 date
hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);
b. 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;
c. 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;
d. 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;
e. Foothill shall have received this duly
executed Amendment, which shall be in full force and effect;
f. Foothill shall have received the Fifth
Amendment Fee of $15,000; and
g. All other documents and legal matters in
connection with the transactions contemplated by this Amendment shall have been
delivered or executed or recorded and shall be in form and substance
satisfactory to Foothill and its counsel.
3. Waiver of Violation of Certain Covenants and
Conditions Subsequent. Pursuant to Borrower's request, Lender hereby agrees to
waive the Events of Default caused by Borrower's failure to comply with:
(a) the provisions of Section 2.12 of the Loan Agreement
requiring the prepayment of Term Loan A, Term Loan B, and the
Advances, as applicable, from any Net Cash Proceeds of any Permitted
Disposition (other than an Ordinary Course Disposition);
-6-
52
(b) the minimum Debt Service Ratio as of the quarter
ending March 31, 1998 of (4.0):1 as set forth in Section 7.19(a) as a
result of Borrower's actual Debt Service Ratio for this period of
(5.76):1;
(c) the minimum Interest Coverage Ratio as of the quarter
ending March 31, 1998 of (5.0):1 as set forth in Section 7.19(d) as a
result of Borrower's actual Interest Coverage Ratio for this period of
(6.64):1; and
(d) the conditions subsequent of the Fourth Amendment
requiring (i) the revision of the Section 7.19on the basis of
Borrower's business plan within 60 days of the Fourth Amendment
Closing Date, and (ii) the Borrower's entry into such mortgages and
deeds of trust in respect of Borrower's leasehold estates in respect
of which a leasehold mortgage may be granted, as Foothill shall
reasonably request within 90 days of the Fourth Amendment Closing
Date.
4. Condition Subsequent. As a condition subsequent to
the effectiveness of this Fifth Amendment, within 60 days of the Fifth
Amendment Closing Date, Foothill and Borrower shall have entered into such
mortgages and deeds of trust in respect of Borrower's leasehold estates in
respect of which a leasehold mortgage may be granted, as Foothill shall
reasonably request, in form and substance satisfactory to Foothill in its
reasonable discretion, and the Borrower hereby agrees to make reasonable, good
faith, efforts to obtain the consent of the lessor to the granting of such
leasehold mortgages (the failure by Borrower to so enter into such mortgages
and deeds of trust on the expiry of the 60 day period provided therefor
constituting an Event of Default, but the failure to perform during the period
prior to the expiration of the applicable 60 day period provided therefor shall
not constitute a Default).
5. 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 governmental 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.
6. 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.
-7-
53
7. 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 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 Lender under
the Loan Agreement, as in effect prior to the date hereof.
8. 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, 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, 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.
-8-
54
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed in on the date first written above.
MALIBU ENTERTAINMENT WORLDWIDE, INC., a Georgia corporation
MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a Texas corporation
By: /s/ XXXXXXX X. XXXXXXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
----------------------------
Title: Vice President
---------------------------
MOUNTASIA MANAGEMENT COMPANY, a Georgia corporation
MOUNTASIA PARTNERS I, INC., a Georgia corporation
MALIBU GRAND PRIX CORPORATION, a Delaware corporation
MIAMI CASTLE MGPC, INC., a Florida corporation
TEMPE MGPC, INC., an Arizona corporation
TUCSON MGPC, INC., an Arizona corporation
FRESNO MGPC, INC., a California corporation
NORTH HOLLYWOOD CASTLE MGPC, INC., a California 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
REDWOOD CITY MGPC, INC., a California corporation
SAN DIEGO MGPC, INC., a California corporation
DENVER MGPC, INC., a Colorado corporation
XXXXXXX XXXXXX MGPC, INC., a Florida corporation
ORLANDO MGPC, INC., a Florida corporation
TAMPA CASTLE MGPC, INC., a Florida corporation
TAMPA MGPC, INC., a Florida corporation
LENEXA MGPC, INC., a Kansas corporation
MT. LAUREL MGPC, INC., a New Jersey corporation
COLUMBUS MGPC, INC., an Ohio corporation
CINCINNATI MGPC, INC., an Ohio corporation
PORTLAND MGPC, INC., an Oregon corporation
AUSTIN MGPC, INC., a Texas corporation
DALLAS CASTLE MGPC, INC., a Texas corporation
DALLAS MGPC, INC., a Texas corporation
-9-
55
HOUSTON CASTLE MGPC, INC., a Texas corporation
HOUSTON II 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
MOUNTASIA - MEI MANUFACTURING COMPANY, INC., a Georgia corporation
AMUSEMENT CO., INC., a Delaware corporation
AMUSEMENT CO. PARTNERS, INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
----------------------------
Title: Vice President
---------------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ XXXXXX X. XXXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
----------------------------
Title: Vice President
---------------------------
-10-
56
AMENDMENT NUMBER SIX TO CONSOLIDATED, AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER SIX TO CONSOLIDATED, AMENDED AND RESTATED LOAN
AND SECURITY AGREEMENT (this "Amendment"), is entered into as of December ___,
1998, between FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), with a place of business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, MALIBU ENTERTAINMENT WORLDWIDE,
INC., a Georgia corporation ("MEWI"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA MANAGEMENT
COMPANY, a Georgia corporation ("MMC"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA PARTNERS I,
INC., a Georgia corporation ("MPI"), with its chief executive office located at
000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX
CORPORATION, a Delaware corporation ("MGPC"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MIAMI CASTLE
MGPC, INC., a Florida corporation ("Miami"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, TEMPE MGPC,
INC., an Arizona corporation ("Tempe"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, TUCSON MGPC, INC., an
Arizona corporation ("Tucson"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, FRESNO MGPC, INC., a California
corporation ("Fresno"), with its chief executive office located at 000 Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, NORTH HOLLYWOOD CASTLE MGPC, INC., a
California corporation ("NHC"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, XXXXXX HILLS MGPC, INC., a
California corporation ("PH"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, XXXXXX HILLS SHOWBOAT MGPC,
INC., a California corporation ("PHS"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, REDONDO BEACH CASTLE
MGPC, INC., a California corporation ("RBC"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, REDWOOD CITY
CASTLE MGPC, INC., a California corporation ("RCC"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, REDWOOD
CITY MGPC, INC., a California corporation ("RC"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, SAN DIEGO
MGPC, INC., a California corporation ("San Diego"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, DENVER
MGPC, INC., a Colorado corporation ("Denver"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, XXXXXXX XXXXXX
MGPC, INC., a Florida corporation ("OC"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, ORLANDO MGPC,
INC., a Florida corporation ("Orlando"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, TAMPA CASTLE
MGPC, INC., a Florida corporation ("TC"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, TAMPA MGPC,
INC., a Florida corporation ("Tampa"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, LENEXA MGPC, INC., a
Kansas corporation ("Lenexa"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MT. LAUREL MGPC, INC., a New
Jersey corporation ("Mt. Laurel"), with its chief executive office located at
000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
57
COLUMBUS MGPC, INC., an Ohio corporation ("Columbus"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
CINCINNATI MGPC, INC., an Ohio corporation ("Cincinnati"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
PORTLAND MGPC, INC., an Oregon corporation ("Portland"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
AUSTIN MGPC, INC., a Texas corporation ("Austin"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, DALLAS
CASTLE MGPC, INC., a Texas corporation ("DC"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, DALLAS MGPC,
INC., a Texas corporation ("Dallas"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, HOUSTON CASTLE MGPC,
INC., a Texas corporation ("HC"), with its chief executive office located at
000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, HOUSTON II MGPC, INC., a
Texas corporation ("Houston"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, SAN XXXXXXX XXXXXX MGPC, INC.,
a Texas corporation ("SAC"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, SAN ANTONIO MGPC, INC., a Texas
corporation ("San Antonio"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA DEVELOPMENT COMPANY,
a Georgia corporation ("MDC"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX DESIGN &
MANUFACTURING, INC., a California corporation ("MGPDMI"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
MALIBU GRAND PRIX FINANCIAL SERVICES, INC., a California corporation
("MGPFSI"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, OFF TRACK MANAGEMENT, INC., a California corporation
("Off Track"), with its chief executive office located at 000 Xxxxx Xxxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, MGP SPECIAL, INC., a California corporation
("Special"), with its chief executive office located at 000 Xxxxx Xxxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, AMUSEMENT MANAGEMENT FLORIDA, INC., a Florida
corporation ("Amusement"), with its chief executive office located at 000 Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX CONSULTING, INC., a
California corporation ("Consulting"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI
INTERNATIONAL, INC., a Georgia corporation ("MMEII"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA
- MEI LIMITED COMPANY, INC., a California corporation ("MMEILC"), with its
chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, MOUNTASIA - MEI CALIFORNIA, INC., a California corporation ("MCNC"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI CALIFORNIA LIMITED PARTNERSHIP, a
California limited partnership ("MMEICLP"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI
MANUFACTURING COMPANY, INC., a Georgia corporation ("MMEIMCI"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
AMUSEMENT CO., INC., a Delaware corporation ("ACI"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, AMUSEMENT
CO. PARTNERS, INC., a Delaware corporation ("ACPI"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, and
MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a Texas corporation ("MFEC"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000.
2
58
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 to (i) amend the Loan
Agreement to the extent necessary to extend the first date on which Borrower is
required to make monthly principal payments of $500,000.00 towards Term Loan A
pursuant to Section 2.2 (c) of the Loan Agreement, and (ii) waive any Event of
Default arising as the result of Borrower's failure to make any such payment as
otherwise required by Section 2.2(c) of the Loan Agreement on or before the
date hereof.
C. Foothill is willing to so amend the Loan Agreement in
accordance with the terms and conditions hereof and to waive any such Event of
Default.
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 the following definition in alphabetical order:
"Sixth Amendment means that certain Amendment Number
Six to Consolidated, Amended, and Restated Loan and Security Agreement, dated
as of November 16, 1998."
b. The definition of "SPC Non-Recourse
Refinancing Deadline" contained in Section 1.1 of the Loan Agreement hereby is
amended and restated in its entirety as follows:
"SPC Non-Recourse Refinancing Deadline shall mean
January 20, 1999."
c. Section 2.2 (c) of the Loan Agreement hereby
is amended and restated in its entirety as follows:
3
59
"(c) Anything to the contrary in this Section 2.2
notwithstanding, if, prior to the SPC Non-Recourse Refinancing Deadline,
Borrower has not (i) extended the final maturity of the SPC Non-Recourse
Financing to a date on or after August 31, 2001, (ii) obtained replacement
financing for the SPC Non-Recourse Financing on terms and conditions
satisfactory to Foothill in its sole discretion, (iii) converted the entire
amount of the SPC Non-Recourse Financing to shares of preferred stock of MEWI
on terms and conditions satisfactory to Foothill in its sole discretion, or
(iv) converted a portion of the amount of the SPC Non-Recourse Financing to
shares of preferred stock of MEWI on terms and conditions satisfactory to
Foothill in its sole discretion and extended the final maturity of the
remaining amount of the SPC Non-Recourse Financing to a date on or after August
31, 2001, then Borrower shall commence repayment of the unpaid principal
balance of Term Loan A in monthly installments of principal in the amount of
$500,000. Each such installment shall be due and payable on the first day of
each month, commencing on the first day of the first month following the SPC
Non-Recourse Refinancing Deadline, and continuing on the first day of each
succeeding month until the earlier of (x) the date on which the unpaid balance
of Term Loan A is paid in full, or (y) the Maturity Date. The remaining
outstanding principal balance and all accrued and unpaid interest under Term
Loan A shall be due and payable upon the termination of this Agreement, whether
by its terms, by prepayment, by acceleration, or otherwise."
2. Condition Precedent 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:
a. 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 date
hereof as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);
b. 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;
c. 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;
d. 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;
e. Foothill shall have received payment in full
in cash of a fee in the amount of $5,000 as consideration for its entry into
this Amendment;
f. Foothill shall have received this duly
executed Amendment, which shall be in full force and effect;
4
60
g. 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. Waiver of Violation of Certain Covenants. Pursuant
to the request of Borrower, Foothill hereby agrees to waive any Default or any
Event of Default existing on or prior to the date of the effectiveness of this
Amendment arising in respect of Section 2.2(c) of the Loan Agreement prior to
its amendment hereby.
6. 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.
7. 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.
8. 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 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 Lender under
the Loan Agreement, as in effect prior to the date hereof.
9. 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, 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 Firth
Amendment, and this Amendment.
5
61
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]
6
62
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
MOUNTASIA PARTNERS I, INC., a Georgia corporation
MALIBU GRAND PRIX CORPORATION, a Delaware corporation
MIAMI CASTLE MGPC, INC., a Florida corporation
TEMPE MGPC, INC., an Arizona corporation
TUCSON MGPC, INC., an Arizona corporation
FRESNO MGPC, INC., a California corporation
NORTH HOLLYWOOD CASTLE MGPC, INC., a California corporation
XXXXXX HILLS MGPC, INC., a California corporation
XXXXXX 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
DENVER MGPC, INC., a Colorado corporation
XXXXXXX XXXXXX MGPC, INC., a Florida corporation
ORLANDO MGPC, INC., a Florida corporation
TAMPA CASTLE MGPC, INC., a Florida corporation
TAMPA MGPC, INC., a Florida corporation
LENEXA MGPC, INC., a Kansas corporation
MT. LAUREL MGPC, INC., a New Jersey corporation
COLUMBUS MGPC, INC., an Ohio corporation
CINCINNATI MGPC, INC., an Ohio corporation
PORTLAND MGPC, INC., an Oregon corporation
AUSTIN MGPC, INC., a Texas corporation
DALLAS CASTLE MGPC, INC., a Texas corporation
DALLAS MGPC, INC., a Texas corporation
HOUSTON CASTLE MGPC, INC., a Texas corporation
HOUSTON II 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
7
63
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
MOUNTASIA - MEI MANUFACTURING COMPANY, INC., a Georgia corporation
AMUSEMENT CO., INC., a Delaware corporation
AMUSEMENT CO. PARTNERS, INC., a Delaware corporation
By: /s/ Xxxxxxx X. XxxxXxxxxxx
----------------------------------
Xxxxxxx X. XxxxXxxxxxx
Vice President
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Xxx Xxxxxxxxx
Vice President
8
64
AMENDMENT NUMBER SEVEN TO CONSOLIDATED, AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER SEVEN TO CONSOLIDATED, AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT (this "Amendment"), is entered into as of
February 12, 1999, between FOOTHILL CAPITAL CORPORATION, a California
corporation ("Foothill"), with a place of business located at 00000 Xxxxx
Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, MALIBU
ENTERTAINMENT WORLDWIDE, INC., a Georgia corporation ("MEWI"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
MOUNTASIA MANAGEMENT COMPANY, a Georgia corporation ("MMC"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
MALIBU GRAND PRIX CORPORATION, a Delaware corporation ("MGPC"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
TUCSON MGPC, INC., an Arizona corporation ("Tucson"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, FRESNO
MGPC, INC., a California corporation ("Fresno"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, NORTH
HOLLYWOOD CASTLE MGPC, INC., a California corporation ("NHC"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
XXXXXX HILLS MGPC, INC., a California corporation ("PH"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
XXXXXX HILLS SHOWBOAT MGPC, INC., a California corporation ("PHS"), with its
chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, REDONDO BEACH CASTLE MGPC, INC., a California corporation ("RBC"), with
its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, REDWOOD CITY CASTLE MGPC, INC., a California corporation ("RCC"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, REDWOOD CITY MGPC, INC., a California corporation ("RC"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, SAN DIEGO MGPC, INC., a California corporation ("San
Diego"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, PORTLAND MGPC, INC., an Oregon corporation
("Portland"), with its chief executive office located at 000 Xxxxx Xxxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, AUSTIN MGPC, INC., a Texas corporation
("Austin"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, DALLAS CASTLE MGPC, INC., a Texas corporation
("DC"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, SAN XXXXXXX XXXXXX MGPC, INC., a Texas corporation
("SAC"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, SAN ANTONIO MGPC, INC., a Texas corporation ("San
Antonio"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, MOUNTASIA DEVELOPMENT COMPANY, a Georgia corporation
("MDC"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX DESIGN & MANUFACTURING, INC., a
California corporation ("MGPDMI"), with its chief executive office located at
000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX FINANCIAL
SERVICES, INC., a California corporation ("MGPFSI"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, OFF TRACK
MANAGEMENT, INC., a California corporation ("Off Track"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
MGP
65
SPECIAL, INC., a California corporation ("Special"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, AMUSEMENT
MANAGEMENT FLORIDA, INC., a Florida corporation ("Amusement"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
MALIBU GRAND PRIX CONSULTING, INC., a California corporation ("Consulting"),
with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI INTERNATIONAL, INC., a Georgia corporation
("MMEII"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI LIMITED COMPANY, INC., a California
corporation ("MMEILC"), with its chief executive office located at 000 Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI CALIFORNIA, INC., a
California corporation ("MCNC"), with its chief executive office located at 000
Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA - MEI CALIFORNIA
LIMITED PARTNERSHIP, a California limited partnership ("MMEICLP"), with its
chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, and MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a Texas corporation
("MFEC"), with its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000.
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 to (i) amend the Loan Agreement to the
extent necessary to extend the first date on which Borrower is required
to make monthly principal payments of $500,000.00 towards Term Loan A
pursuant to Section 2.2 (c) of the Loan Agreement, (ii) waive any Event
of Default arising as the result of Borrower's failure to make any such
payment as otherwise required by Section 2.2(c) of the Loan Agreement
on or before the date hereof, (iii) consent to the incurrence of
additional subordinated indebtedness in an aggregate amount not to
exceed $30,000,000, and (iv) consent to certain amendment to the terms
and conditions of the Permitted MEIH Subordinated Debt and the Current
MEIH Advances.
C. Foothill is willing to so amend the Loan Agreement in accordance with
the terms and conditions hereof, to waive any such Event of Default,
and to consent to the amendment of the terms and conditions of the
Permitted MEIH Subordinated Debt and the Current MEIH Advances.
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.
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66
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:
"MEIH Subordinated Promissory Note means that certain Third
Amended and Restated Subordinated Convertible Promissory Note dated as of
January 20, 1999, in the original principal amount of up to $65,000,000, issued
by MEWI in favor of MEIH, subject to the terms and conditions of the MEIH
Subordination Agreement, in the form attached hereto as the Second Amended and
Restated Annex A."
"MEIH Subordination Agreement means that certain Second
Amended and Restated Subordination Agreement dated as of January 20, 0000, xxxxx
XXXX, XXXX, and Foothill, in the form attached hereto as Amended and Restated
Annex B."
"Permitted SZ Capital Subordinated Debt means any Indebtedness
constituting a "Subordinated Obligation" under and as defined in the SZ Capital
Subordination Agreement among MEWI, SZ Capital, and Foothill in an aggregate
principal amount of up to $30,000,000 and evidenced by the SZ Capital
Subordinated Promissory Note."
"Permitted SZ Capital Subordinated Debt Payments means, so
long as no Event of Default has occurred and is continuing and subject the terms
and conditions of the SZ Capital Subordination Agreement, one or more payments
to SZ Capital, made in connection with the repayment or prepayment of any
Permitted SZ Capital Subordinated Debt extended to Borrower by SZ Capital from
time to time. Any such Permitted SZ Capital Subordinated Debt Payments shall be
made (a) in the form of additional capital stock of MEWI, (b) from the proceeds
of the issuance of additional capital stock of MEWI, or (c) from the proceeds of
Future Subordinated Debt incurred by MEWI."
"Second Amended and Restated MEIH Current Advances Promissory
Note means that certain Second Amended and Restated Promissory Note dated as of
January 20, 1999, in the original principal amount of up to $10,000,000, issued
by MEWI in favor of MEIH, in the form attached hereto as Annex C."
"Seventh Amendment means that certain Amendment Number Seven
to Consolidated, Amended, and Restated Loan and Security Agreement, dated as of
February ___, 1999."
"Seventh Amendment Closing Date means the earlier of (a)
February 15, 1999 and (b) the date on which each of the conditions precedent to
the Seventh Amendment contained in Section 2 thereof are satisfied or waived by
Foothill."
"SZ Capital means SZ Capital, L.P., a Delaware limited
partnership."
"SZ Capital Subordinated Promissory Note means that certain
Subordinated Convertible Promissory Note dated as of November 16, 1998, in the
original principal amount of up to $30,000,000, issued by MEWI in favor of SZ
Capital, subject to the terms and conditions of the SZ Capital Subordination
Agreement, in the form attached hereto as Annex D."
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67
"SZ Capital Subordination Agreement means that certain
Subordination Agreement dated as of November 16, 1998, among SZ Capital, MEWI,
and Foothill, in the form attached hereto as Annex E."
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:
"Borrower means MEWI, MMC, MGPC, Tucson, Fresno,
NHC, PH, PHS, RBC, RCC, RC, San Diego, Portland, Austin, DC, SAC, San Antonio,
MDC, MGPDMI, MGPFSI, Off Track, Special, Amusement, Consulting, MMEII, MMEILC,
MCNC, MMEICLP, and MFEC, and each of them, and any one or more of them,
individually and collectively, and jointly and severally."
"Existing Subordinated Debt means (a) the Ten
Percent Debentures, (b) the Nine Percent Debentures, (c) the NEF Debentures,
(d) the Permitted MEIH Subordinated Debt, and (e) the Permitted SZ Capital
Subordinated Debt."
"Permitted MEIH Subordinated Debt means any
Indebtedness constituting a "Subordinated Obligation" under and as defined in
the MEIH Subordination Agreement among MEWI, MEIH, and Foothill in an aggregate
principal amount of up to $65,000,000 and evidenced by the MEIH Subordinated
Promissory Note."
"Permitted MEIH Subordinated Debt Payments means, so
long as no Event of Default has occurred and is continuing and subject the
terms and conditions of the MEIH Subordination Agreement, one or more payments
to MEIH, made in connection with the repayment or prepayment of any Permitted
MEIH Subordinated Debt extended to Borrower by MEIH from time to time. Any
such Permitted MEIH Subordinated Debt Payments shall be made (a) in the form of
additional capital stock of MEWI, (b) from the proceeds of the issuance of
additional capital stock of MEWI, or (c) from the proceeds of Future
Subordinated Debt incurred by MEWI."
"SPC Non-Recourse Refinancing Deadline shall mean
July 20, 1999."
c. The definition of "Permitted Transactions" in Section
1.1 of the Loan Agreement hereby is amended by
deleting the word "and" at the end of existing clause
(o), replacing the period at the end of existing
clause (p) and inserting "; and" in lieu thereof, and
inserting the following new clause (q) immediately
following existing clause (p):
(q) Permitted SZ Capital Subordinated Debt.
d. Section 1.1 of the Loan Agreement hereby is amended
by deleting each of the following definitions in
their entirety:
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68
"ACI"
"ACPI"
"Amended and Restated MEIH Current Advances Promissory Note"
"Amended and Restated Subordination Agreement"
"Amended and Restated Subordinated Promissory Note"
"Columbus"
"Cincinnati"
"Dallas"
"Denver"
"HC"
"Houston"
"Lenexa"
"Miami"
"Mt. Laurel"
"MPI"
"MMEIMCI"
"OC"
"Orlando"
"TC"
"Tampa"
"Tempe"
e. Section 7.8 of the Loan Agreement hereby is amended
and restated in its entirety as follows:
"7.8 PREPAYMENTS AND AMENDMENTS. Except for the Permitted
Transactions, and except in connection with a refinancing permitted by Section
7.1(f), prepay, redeem, retire, defease, purchase, or otherwise acquire any
Indebtedness owing to any third Person, other than the Obligations in accordance
with this Agreement, and (b) directly or indirectly, amend, modify, alter,
increase, or change any of the terms or conditions of any agreement, instrument,
document, indenture, or other writing evidencing or concerning Indebtedness
permitted under Sections 7.1(b), (c), (d), or (e). Without limiting the
generality of
5
69
the foregoing, except for Permitted Ten Percent Debenture Repurchases,
Permitted MEIH Subordinated Debt Payments, and Permitted SZ Capital
Subordinated Debt Payments at no time shall Borrower make any (y) payment with
respect to any Subordinated Debt if the making of same would conflict with the
subordination provisions thereof, or (z) cash payment of principal with respect
to the NEF Debentures."
f. Section 8.11 of the Loan Agreement hereby is amended
and restated in its entirety as follows:
"8.11 If Borrower makes any payment on account of Indebtedness
that has been contractually subordinated in right of payment to the payment of
the Obligations, (a) except to the extent such payment is permitted by the terms
of the subordination provisions applicable to such Indebtedness, and (b) except
for Permitted Ten Percent Debenture Repurchases, Permitted MEIH Subordinated
Debt Payments, and Permitted SZ Capital Subordinated Debt Payments; or"
2. Condition Precedent 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:
a. Foothill shall have received a certificate of the
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;
b. 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 date hereof as though made
on such date (except to the extent that such
representations and warranties relate solely to an
earlier date);
c. 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;
d. 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;
e. 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;
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70
f. Foothill shall have received evidence satisfactory to
it that, on or before the Seventh Amendment Closing
Date, SZ Capital and MEIW shall have entered into
agreements evidencing the Permitted SZ Capital
Subordinated Debt to be extended to MEWI by SZ
Capital on terms and conditions satisfactory to
Foothill in its reasonable discretion;
g. Foothill shall have received each of the following
documents, in form and substance satisfactory to
Foothill and its counsel, duly executed, and each
such document shall be in full force and effect:
(1) the MEIH Subordination Agreement;
(2) the SZ Capital Subordination Agreement; and
(3) this Amendment;
h. Foothill shall have received the form of MEIH
Subordinated Promissory Note, in form and substance
satisfactory to Foothill and its counsel.
i. Foothill shall have received the form of Second
Amended and Restated MEIH Current Advances Promissory
Note, in form and substance satisfactory to Foothill
and its counsel.
j. Foothill shall have received the form of SZ Capital
Subordinated Promissory Note, in form and substance
satisfactory to Foothill and its counsel.
k. Foothill shall have completed a satisfactory review
of the loan agreement and any such other agreements
and/or documents related to the Permitted MEIH
Subordinated Debt as are requested by Foothill in its
reasonable discretion;
l. Foothill shall have completed a satisfactory review
of the loan agreement and any such other agreements
and/or documents related to the Permitted SZ Capital
Subordinated Debt as are requested by Foothill in its
reasonable discretion;
m. Foothill shall have received payment in full in cash
of a fee in the amount of $5,000 as consideration for
its entry into this Amendment;
n. 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.
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71
3. Waiver of Violation of Certain Covenants and Consent to
Certain Actions.
a. Pursuant to the request of Borrower, Foothill hereby
agrees to waive any Default or any Event of Default
existing on or prior to the date of the effectiveness
of this Amendment arising in respect of Section
2.2(c) of the Loan Agreement prior to its amendment
hereby.
b. Pursuant to the request of Borrower, Foothill hereby
agrees (i) to the incurrence by MEWI of Indebtedness
in an aggregate principal amount of up to $30,000,000
payable to SZ Capital on the terms and conditions set
forth in the SZ Capital Subordinated Promissory Note,
and (ii) that all such Indebtedness shall constitute
"Future Subordinated Indebtedness" approved by
Foothill in accordance with the Loan Agreement.
4. 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.
5. 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.
6. 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 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 Lender under the Loan
Agreement, as in effect prior to the date hereof.
7. 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, and this Amendment.
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72
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, 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]
9
73
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
XXXXXX HILLS MGPC, INC., a California corporation
XXXXXX 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 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
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
President
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Xxx Xxxxxxxxx
Vice President
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74
AMENDMENT NUMBER EIGHT TO CONSOLIDATED, AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER EIGHT TO CONSOLIDATED, AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT (this "Amendment"), is entered into as of
March 30, 1999, between FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), with a place of business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, MALIBU ENTERTAINMENT WORLDWIDE,
INC., a Georgia corporation ("MEWI"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MOUNTASIA MANAGEMENT
COMPANY, a Georgia corporation ("MMC"), with its chief executive office located
at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, MALIBU GRAND PRIX
CORPORATION, a Delaware corporation ("MGPC"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, TUCSON MGPC,
INC., an Arizona corporation ("Tucson"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, FRESNO MGPC,
INC., a California corporation ("Fresno"), with its chief executive office
located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, NORTH HOLLYWOOD
CASTLE MGPC, INC., a California corporation ("NHC"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, XXXXXX
HILLS MGPC, INC., a California corporation ("PH"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, XXXXXX
HILLS SHOWBOAT MGPC, INC., a California corporation ("PHS"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
REDONDO BEACH CASTLE MGPC, INC., a California corporation ("RBC"), with its
chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, REDWOOD CITY CASTLE MGPC, INC., a California corporation ("RCC"), with
its chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, REDWOOD CITY MGPC, INC., a California corporation ("RC"), with its
chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, SAN DIEGO MGPC, INC., a California corporation ("San Diego"), with its
chief executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, PORTLAND MGPC, INC., an Oregon corporation ("Portland"), with its chief
executive office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
AUSTIN MGPC, INC., a Texas corporation ("Austin"), with its chief executive
office located at 000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, DALLAS
CASTLE MGPC, INC., a Texas corporation ("DC"), with its chief executive office
located at 717 North Harwood, Suite 1650, Dallas, Texas 75201, SAN ANTONIO
CASTLE MGPC, INC., a Texas corporation ("SAC"), with its chief executive office
located at 717 North Harwood, Suite 1650, Dallas, Texas 75201, SAN ANTONIO
MGPC, INC., a Texas corporation ("San Antonio"), with its chief executive
office located at 717 North Harwood, Suite 1650, Dallas, Texas 75201, MOUNTASIA
DEVELOPMENT COMPANY, a Georgia corporation ("MDC"), with its chief executive
office located at 717 North Harwood, Suite 1650, Dallas, Texas 75201, MALIBU
GRAND PRIX DESIGN & MANUFACTURING, INC., a California corporation ("MGPDMI"),
with its chief executive office located at 717 North Harwood, Suite 1650,
Dallas, Texas 75201, MALIBU GRAND PRIX FINANCIAL SERVICES, INC., a California
corporation ("MGPFSI"), with its chief executive office located at 717 North
Harwood, Suite 1650, Dallas, Texas 75201, OFF TRACK MANAGEMENT, INC., a
California corporation ("Off Track"), with its chief executive office located
at 717 North Harwood, Suite 1650, Dallas, Texas 75201, MGP
75
SPECIAL, INC., a California corporation ("Special"), with its chief executive
office located at 717 North Harwood, Suite 1650, Dallas, Texas 75201, AMUSEMENT
MANAGEMENT FLORIDA, INC., a Florida corporation ("Amusement"), with its chief
executive office located at 717 North Harwood, Suite 1650, Dallas, Texas 75201,
MALIBU GRAND PRIX CONSULTING, INC., a California corporation ("Consulting"),
with its chief executive office located at 717 North Harwood, Suite 1650,
Dallas, Texas 75201, MOUNTASIA - MEI INTERNATIONAL, INC., a Georgia corporation
("MMEII"), with its chief executive office located at 717 North Harwood, Suite
1650, Dallas, Texas 75201, MOUNTASIA - MEI LIMITED COMPANY, INC., a California
corporation ("MMEILC"), with its chief executive office located at 717 North
Harwood, Suite 1650, Dallas, Texas 75201, MOUNTASIA - MEI CALIFORNIA, INC., a
California corporation ("MCNC"), with its chief executive office located at 717
North Harwood, Suite 1650, Dallas, Texas 75201, MOUNTASIA - MEI CALIFORNIA
LIMITED PARTNERSHIP, a California limited partnership ("MMEICLP"), with its
chief executive office located at 717 North Harwood, Suite 1650, Dallas, Texas
75201, and MOUNTASIA FAMILY ENTERTAINMENT CENTERS, INC., a Texas corporation
("MFEC"), with its chief executive office located at 717 North Harwood, Suite
1650, Dallas, Texas 75201.
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 to (i) amend the Loan Agreement to
the extent necessary to revise the financial covenants with respect to the
minimum Debt Service Ratio and the minimum Interest Coverage Ratio, and (ii)
waive Borrower's failure to comply with certain of the requirements of Sections
6.3, 7.19(a) and 7.19(d) of the Loan Agreement.
C. Foothill is willing to so amend the Loan Agreement in accordance
with the terms and conditions hereof, to waive any such Event of Default.
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:
"Eighth Amendment means that certain Amendment Number Eight
to Consolidated, Amended, and Restated Loan and Security Agreement, dated as of
March 30, 1999."
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76
b. Section 1.1 of the Loan Agreement hereby is amended by
deleting the following definition in its entirety and substituting the
following in lieu thereof:
"Relevant Measuring Period means, with respect to March 31,
1999, the three months then ended, with respect to June 30, 1999, the six
months then ended, with respect to September 30, 1999, the nine months then
ended, and, with respect to any date thereafter, the twelve months then ended."
c. Clause (a) of Section 7.19 of the Loan Agreement hereby
is amended and restated in its entirety as follows:
"(a) Debt Service Ratio. A Debt Service Ratio for the
Relevant Measuring Period of not less than the relevant amount set forth in the
following table, measured on a fiscal quarter-end basis:
Period Ending Minimum Ratio
------------- -------------
3/31/99 (1.50) : 1
6/30/99 0.00 : 1
9/30/99 0.25 : 1
12/31/99 0.35 : 1
3/31/2000 0.50 : 1
As of the end of each quarter thereafter 1.00 : 1 "
d.
e. Clause (d) of Section 7.19 of the Loan Agreement
hereby is amended and restated in its entirety as follows:
"(d) Interest Coverage Ratio. An Interest Coverage Ratio for the
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 Ratio
------------- -------------
3/3/99 (1.50) : 1
6/30/99 0.00 : 1
9/30/99 0.25 : 1
12/31/99 0.35 : 1
3/31/2000 0.50 : 1
As of the end of each quarter thereafter 1.00 : 1 "
2. Condition Precedent 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:
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a. On or before April 2, 1999, Foothill shall have received
a certificate of the 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;
b. 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 date hereof as though made
on such date (except to the extent that such representations and warranties
relate solely to an earlier date);
c. 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;
d. 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;
e. 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;
f. Foothill shall have received payment in full in cash of
a fee in the amount of $25,000 as consideration for its entry into this
Amendment;
g. 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. Waiver of Violation of Certain Covenants and Consent to
Certain Actions.
a. Pursuant to the request of Borrower, Foothill hereby
agrees to waive any Default or any Event of Default existing on or prior to the
date of the effectiveness of this Amendment arising in respect of (i) Section
6.3 as the result of the delivery to Foothill of annual audited financial
statements containing a going concern qualification, (ii) Section 7.19(a) of
the Loan Agreement as the result of Borrower's Debt Service Ratio of (0.95) :1
for the 9 month period ended 12/31/98 failing to meet the required minimum of
0.0 :1, and (iii) Section 7.19(d) of the Loan Agreement as the result of
Borrower's Interest Coverage Ratio of (1.09) :1 for the 9 month period ended
12/31/98 failing to meet the required minimum of 0.0 :1.
4. 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,
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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.
5. 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.
6. 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 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 Lender under the
Loan Agreement, as in effect prior to the date hereof.
7. 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.
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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
PUENTE HILLS MGPC, INC., a California corporation
PUENTE 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 ANTONIO CASTLE 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
MUSEMENT 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: RICHARD N. BECKERT
--------------------------------
Richard N. Beckert
President
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: KEVIN M. COYLE
--------------------------------
Kevin M. Coyle
Senior Vice President
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