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EXHIBIT 10.26
AMENDMENT NUMBER ELEVEN TO CONSOLIDATED, AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER ELEVEN TO CONSOLIDATED, AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT (this "Amendment"), is entered into as of
March 22, 2000, 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
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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, 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 amend the Loan Agreement to permit
the disposition by Borrower of certain assets (the McAllen and North
Richland parks), to agree on the application of the proceeds of those
asset dispositions, and to modify the levels of Adjusted Net Worth
required to be maintained by Borrower.
C. Foothill is willing to so amend the Loan Agreement in accordance with
the terms and conditions hereof.
Agreement:
NOW, THEREFORE, in consideration of the mutual promises
contained herein, Foothill and Borrower hereby agree as follows:
All capitalized terms used herein and not defined herein shall
have the meanings ascribed to them in the Loan Agreement.
1. Amendments to the Loan Agreement.
a. Section 1.1 of the Loan Agreement hereby is amended by
adding each of the following definitions in
alphabetical order:
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"Eleventh Amendment" means that certain Amendment Number
Eleven to Consolidated, Amended, and Restated Loan and Security Agreement, dated
as of March 22, 2000.
"Eleventh Amendment Closing Date" means the date on which each
of the conditions precedent set forth in Section 2 of the Eleventh Amendment are
satisfied in full.
b. Subsection 7.19(c) of the Loan Agreement hereby is
amended and restated in its entirety to read as
follows:
(c) Minimum Adjusted Net Worth. Adjusted Net Worth of at least
the amount shown below as of the corresponding dates set forth below:
Period Ending Minimum Adjusted Net Worth
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12/31/99 $23,000,000
3/31/2000 $17,500,000
6/30/2000 $16,750,000
9/30/2000 $16,000,000
12/31/2000 $14,250,000
3/31/2001 $12,000,000
6/30/2001 $11,500,000
c. Section 7.4 of the Loan Agreement hereby is amended to
add the following sentence at the end thereof: "The
foregoing notwithstanding, Borrower may dispose of
those certain assets consisting of its limited
partnership interest in the North Richland Hills park
and settlement of the related construction note
receivable, and the assets relating to the McAllen
park, in accordance with the terms of that certain
letter dated March 8, 2000 from Borrower to Foothill
with respect to North Richland Hills, and in accordance
with the terms of that certain letter dated February
22, 2000 from Borrower to Foothill with respect to
McAllen, provided that the combined gross proceeds from
such dispositions shall total at least $258,242 and
shall be applied such that Foothill will receive 70% of
such proceeds, but in any event not less than $180,000,
to be applied as a permanent paydown of the Term Loans,
with the Borrower being entitled to retain the
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balance of such proceeds to be used for general working
capital purposes."
2. Condition to the Effectiveness of this Amendment. The effectiveness
of this Amendment is subject to the fulfillment, to the satisfaction of Foothill
and its counsel, of each of the following conditions precedent:
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; and
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. Payment to Foothill in cash of a non-refundable and
fully-earned amendment fee of $5,000.
3. Representations and Warranties. Borrower hereby represents and
warrants to Foothill that (a) the execution, delivery, and performance of this
Amendment are within its corporate powers, have been duly authorized by all
necessary corporate action, and are not in contravention of any law, rule, or
regulation, or any order, judgment, decree, writ, injunction, or award of any
arbitrator, court, or governments authority, or of the terms of its charter or
bylaws, or of any contract or undertaking to which it is a party or by which any
of its properties may be bound or affected, and (b) the Loan Agreement, as
amended by this Amendment, constitutes Borrower's legal, valid, and binding
obligation, enforceable against Borrower in accordance with its terms.
4. Further Assurances. Borrower shall execute and deliver all financing
statements, agreements, documents, and instruments, in form and substance
satisfactory to Foothill, and take all actions as Foothill may reasonably
request from time to time, to perfect and maintain the perfection and priority
of Foothill's security interests in the Collateral, and to fully consummate the
transactions contemplated under the Loan Agreement and this Amendment.
5. Effect on Loan Documents. The Loan Agreement, as amended hereby, and
the other Loan Documents shall be and remain in full force and effect in
accordance with their respective terms and each hereby is ratified and confirmed
in all respects. Except as expressly set
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forth herein, the execution, delivery, and performance of this Amendment shall
not operate as a waiver of or as an amendment of any right, power, or remedy of
Foothill under the Loan Agreement, as in effect prior to the date hereof.
6. Miscellaneous.
a. Upon the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement",
"hereunder", "herein", "hereof" or words of like import
referring to the Loan Agreement shall mean and refer to
the Loan Agreement as amended by the First Amendment,
the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Sixth Amendment,
the Seventh Amendment, the Eighth Amendment, the Ninth
Amendment, the Tenth 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, the Eighth
Amendment, the Ninth Amendment, the Tenth 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
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:
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Name:
Title:
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
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Name:
Title:
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