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EXHIBIT 99.22
MUTUAL RELEASE
THIS MUTUAL RELEASE (this "RELEASE") is entered into as of July 20,
1999 between Malibu Entertainment Worldwide, Inc. ("MALIBU"), Malibu Centers,
Inc. ("MCI"), MEI Holdings, L.P. ("MEIH"), SZ Capital, L.P. ("SZ" and, together
with MEIH, Malibu and MCI, the "MALIBU PARTIES" and each, a "MALIBU PARTY"), and
Nomura Asset Capital Corporation ("NOMURA").
RECITALS
A. The parties hereto have previously entered into that certain
Recapitalization Agreement dated as of March 1, 1999, as amended by
letter agreement dated April 26, 1999 (collectively, the "PRIOR
AGREEMENT"), that certain First Amended and Restated Recapitalization
Agreement dated May 10, 1999 (the "FIRST AMENDED AGREEMENT") and that
certain Second Amended and Restated Recapitalization Agreement of even
date herewith (the "SECOND AMENDED AGREEMENT" and, together with the
First Amended Agreement, the "AGREEMENT") to evidence the parties'
agreements with respect to the release of certain liabilities in
connection with the loan in the original principal amount of
$21,390,375 from Nomura to MCI (the "MCI LOAN"), the loan in the
original principal amount of $21,034,759 from Nomura to MEIH (the "MEIH
LOAN"), the loan from SZ to Malibu (the "SZ LOAN"), the loans from MEIH
to Malibu (the "MALIBU LOANS" and, together with the MCI Loan, the MEIH
Loan and the SZ Loans, the "LOANS") and the recapitalization of Malibu.
B. In connection with the Agreement and in order to comply with certain of
the terms set forth therein, the parties hereto desire to set forth
certain waivers, releases and covenants with respect to the Loans.
AGREEMENT
In consideration of the terms and provisions of the Agreement and the
mutual promises and covenants set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. RELEASE BY MALIBU. Malibu, for and on behalf of itself and its heirs,
successors, agents, attorneys, shareholders, partners, officers,
directors, employees, personal representatives and assigns
(collectively, the "MALIBU RELEASING PARTIES"), does forever RELEASE,
ACQUIT AND FULLY DISCHARGE, as of the date hereof, Nomura and its
heirs, successors, agents, attorneys, shareholders, officers,
directors, employees, personal representatives and assigns
(collectively, the "NOMURA RELEASED PARTIES"), MEIH and its heirs,
successors, agents, attorneys, partners, officers, directors,
employees, personal representatives and assigns (collectively, the
"MEIH RELEASED PARTIES"), MCI and its heirs, successors, agents,
attorneys, shareholders, officers, directors, employees, personal
representatives and assigns (collectively, the "MCI RELEASED PARTIES"),
and SZ and its heirs, successors, agents, attorneys, partners,
officers, directors, employees, personal representatives and assigns
(collectively, the "SZ RELEASED
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PARTIES"), from any and all debts, obligations, liabilities, agreements
and rights (collectively, the "RIGHTS OF MALIBU"), and any actions,
causes of action, suits, disputes, damages, claims, and demands of any
kind whatsoever, at law or in equity, whether matured or unmatured,
known or unknown, liquidated or unliquidated, vested or contingent, and
having arisen or which may hereafter arise (collectively, the "MALIBU
CLAIMS") that Malibu had, now has or may hereafter have or claim
against the Nomura Released Parties, the MEIH Released Parties, the MCI
Released Parties and the SZ Released Parties for, upon, or by reason of
any matter, cause or thing whatsoever directly or indirectly arising in
connection with, or related to, (i) the Loans (or any one or more of
such Loans) including, without limitation and as applicable, claims of
fraud, usury, misrepresentation, breach of representation or warranty,
wrongful foreclosure, impairment to collateral or of right of recourse,
enforcement or failure to enforce obligations of liable third parties
with respect to any collateral security, waiver or failure to protect
or perfect any such collateral security, violation or breach of
covenant, default, and other acts or omissions, matters or events
related to the Loans and any and all documentation evidencing the Loans
or arising in connection therewith, (including, without limitation, the
Agreement and the Transaction Documents, as defined in the Agreement)
as well as the transactions or occurrences reflected in or giving rise
to the Loans, (ii) the operation of any one or more of the Malibu
Parties, their subsidiaries and affiliates (and the parks or other
properties owned, held and/or operated by any of such parties) during
the period of time that the Loans (or any one or more of them) have
been in effect between the parties, (iii) any financing or refinancing
arrangements made between any one or more of the Malibu Parties
including, without limitation, the SZ Loan and the Malibu Loans, and
any transactions or occurrences reflected in or giving rise thereto or
to the recapitalization of Malibu, and (iv) the transactions,
occurrences and situations giving rise to, and reflected in, the Prior
Agreement, the Agreement and the Transaction Documents; provided,
however, that this Release does not operate to reduce, release or waive
the obligations of any of the Nomura Released Parties, the MEIH
Released Parties, the MCI Released Parties, or the SZ Released Parties
arising under the Agreement and the Transaction Documents.
2. RELEASE BY MEIH. MEIH, for and on behalf of itself and its heirs,
successors, agents, attorneys, shareholders, partners, officers,
directors, employees, personal representatives and assigns
(collectively, the "MEIH RELEASING PARTIES"), does forever RELEASE,
ACQUIT AND FULLY DISCHARGE, as of the date hereof, the Nomura Released
Parties, Malibu and its heirs, successors, agents, attorneys,
shareholders, officers, directors, employees, personal representatives
and assigns (collectively, the "MALIBU RELEASED PARTIES"), the MCI
Released Parties, and the SZ Released Parties from any and all debts,
obligations, liabilities, agreements and rights (collectively, the
"RIGHTS OF MEIH"), and any actions, causes of action, suits, disputes,
damages, claims, and demands of any kind whatsoever, at law or in
equity, whether matured or unmatured, known or unknown, liquidated or
unliquidated, vested or contingent, and having arisen or which may
hereafter arise (collectively, the "MEIH CLAIMS") that MEIH had, now
has or may hereafter have or claim against the Nomura Released Parties,
the Malibu Released Parties, the MCI Released Parties and the SZ
Released Parties for, upon, or by reason of any matter, cause or thing
whatsoever directly or indirectly arising in connection with, or
related to, (i) the
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Loans (or any one or more of such Loans) including, without limitation
and as applicable, claims of fraud, usury, misrepresentation, breach of
representation or warranty, wrongful foreclosure, impairment to
collateral or of right of recourse, enforcement or failure to enforce
obligations of liable third parties with respect to any collateral
security, waiver or failure to protect or perfect any such collateral
security, violation or breach of covenant, default, and other acts or
omissions, matters or events related to the Loans and any and all
documentation evidencing the Loans or arising in connection therewith,
(including, without limitation, the Agreement and the Transaction
Documents, as defined in the Agreement) as well as the transactions or
occurrences reflected in or giving rise to the Loans, (ii) the
operation of any one or more of the Malibu Parties, their subsidiaries
and affiliates (and the parks or other properties owned, held and/or
operated by any of such parties) during the period of time that the
Loans (or any one or more of them) have been in effect between the
parties, (iii) any financing or refinancing arrangements made between
any one or more of the Malibu Parties including, without limitation,
the SZ Loan and the Malibu Loans, and any transactions or occurrences
reflected in or giving rise thereto or to the recapitalization of
Malibu, and (iv) the transactions, occurrences and situations giving
rise to, and reflected in, the Prior Agreement, the Agreement and the
Transaction Documents; provided, however, that this Release does not
operate to reduce, release or waive the obligations of any of the
Nomura Released Parties, the Malibu Released Parties, the MCI Released
Parties, or the SZ Released Parties arising under the Agreement and the
Transaction Documents; and provided further that notwithstanding
anything contained herein to the contrary, the MEIH Claims do not
include any claims which may arise under terms of the Malibu Loan which
expressly survive the repayment in full of such loans.
3. RELEASE BY MCI. MCI, for and on behalf of itself and its heirs,
successors, agents, attorneys, shareholders, partners, officers,
directors, employees, personal representatives and assigns
(collectively, the "MCI RELEASING PARTIES"), does forever RELEASE,
ACQUIT AND FULLY DISCHARGE, as of the date hereof, the Nomura Released
Parties, the Malibu Released Parties, the MEIH Released Parties, and
the SZ Released Parties from any and all debts, obligations,
liabilities, agreements and rights (collectively, the "RIGHTS OF MCI"),
and any actions, causes of action, suits, disputes, damages, claims,
and demands of any kind whatsoever, at law or in equity, whether
matured or unmatured, known or unknown, liquidated or unliquidated,
vested or contingent, and having arisen or which may hereafter arise
(collectively, the "MCI CLAIMS") that MCI had, now has or may hereafter
have or claim against the Nomura Released Parties, the Malibu Released
Parties, the MEIH Released Parties and the SZ Released Parties for,
upon, or by reason of any matter, cause or thing whatsoever directly or
indirectly arising in connection with, or related to, (i) the Loans (or
any one or more of such Loans) including, without limitation and as
applicable, claims of fraud, usury, misrepresentation, breach of
representation or warranty, wrongful foreclosure, impairment to
collateral or of right of recourse, enforcement or failure to enforce
obligations of liable third parties with respect to any collateral
security, waiver or failure to protect or perfect any such collateral
security, violation or breach of covenant, default, and other acts or
omissions, matters or events related to the Loans and any and all
documentation evidencing the Loans or arising in connection therewith,
(including, without limitation, the Agreement and the Transaction
Documents, as defined in the Agreement) as
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well as the transactions or occurrences reflected in or giving rise to
the Loans, (ii) the operation of any one or more of the Malibu Parties,
their subsidiaries and affiliates (and the parks or other properties
owned, held and/or operated by any of such parties) during the period
of time that the Loans (or any one or more of them) have been in effect
between the parties, (iii) any financing or refinancing arrangements
made between any one or more of the Malibu Parties including, without
limitation, the SZ Loan and the Malibu Loans, and any transactions or
occurrences reflected in or giving rise thereto or to the
recapitalization of Malibu, and (iv) the transactions, occurrences and
situations giving rise to, and reflected in, the Prior Agreement, the
Agreement and the Transaction Documents; provided, however, that this
Release does not operate to reduce, release or waive the obligations of
any of the Nomura Released Parties, the Malibu Released Parties, the
MEIH Released Parties, or the SZ Released Parties arising under the
Agreement and the Transaction Documents.
4. RELEASE BY SZ. SZ, for and on behalf of itself and its heirs,
successors, agents, attorneys, shareholders, partners, officers,
directors, employees, personal representatives and assigns
(collectively, the "SZ RELEASING PARTIES"), does forever RELEASE,
ACQUIT AND FULLY DISCHARGE, as of the date hereof, the Nomura Released
Parties, the Malibu Released Parties, the MEIH Released Parties, and
the MCI Released Parties from any and all debts, obligations,
liabilities, agreements and rights (collectively, the "RIGHTS OF SZ"),
and any actions, causes of action, suits, disputes, damages, claims,
and demands of any kind whatsoever, at law or in equity, whether
matured or unmatured, known or unknown, liquidated or unliquidated,
vested or contingent, and having arisen or which may hereafter arise
(collectively, the "SZ CLAIMS") that SZ had, now has or may hereafter
have or claim against the Nomura Released Parties, the Malibu Released
Parties, the MEIH Released Parties and the MCI Released Parties for,
upon, or by reason of any matter, cause or thing whatsoever directly or
indirectly arising in connection with, or related to, (i) the Loans (or
any one or more of such Loans) including, without limitation and as
applicable, claims of fraud, usury, misrepresentation, breach of
representation or warranty, wrongful foreclosure, impairment to
collateral or of right of recourse, enforcement or failure to enforce
obligations of liable third parties with respect to any collateral
security, waiver or failure to protect or perfect any such collateral
security, violation or breach of covenant, default, and other acts or
omissions, matters or events related to the Loans and any and all
documentation evidencing the Loans or arising in connection therewith,
(including, without limitation, the Agreement and the Transaction
Documents, as defined in the Agreement) as well as the transactions or
occurrences reflected in or giving rise to the Loans, (ii) the
operation of any one or more of the Malibu Parties, their subsidiaries
and affiliates (and the parks or other properties owned, held and/or
operated by any of such parties) during the period of time that the
Loans (or any one or more of them) have been in effect between the
parties, (iii) any financing or refinancing arrangements made between
any one or more of the Malibu Parties including, without limitation,
the SZ Loan and the Malibu Loans, and any transactions or occurrences
reflected in or giving rise thereto or to the recapitalization of
Malibu, and (iv) the transactions, occurrences and situations giving
rise to, and reflected in, the Prior Agreement, the Agreement and the
Transaction Documents; provided, however, that this Release does not
operate to reduce, release or waive the obligations of any of the
Nomura Released Parties, the Malibu Released Parties, the MEIH Released
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Parties, or the MCI Released Parties arising under the Agreement and
the Transaction Documents; and provided further that notwithstanding
anything contained herein to the contrary, the SZ Claims do not include
any claims which may arise under terms of the SZ Loan which expressly
survive the repayment in full of such loans.
5. RELEASE BY NOMURA. Nomura, for and on behalf of itself and its heirs,
successors, agents, attorneys, shareholders, partners, officers,
directors, employees, personal representatives and assigns
(collectively, the "NOMURA RELEASING PARTIES"), does forever RELEASE,
ACQUIT AND FULLY DISCHARGE, as of the date hereof, the Malibu Released
Parties, the MEIH Released Parties, the MCI Released Parties and the SZ
Released Parties from any and all debts, obligations, liabilities,
agreements and rights (collectively, the "RIGHTS OF NOMURA"), and any
actions, causes of action, suits, disputes, damages, claims, and
demands of any kind whatsoever, at law or in equity, whether matured or
unmatured, known or unknown, liquidated or unliquidated, vested or
contingent, and having arisen or which may hereafter arise
(collectively, the "NOMURA CLAIMS") that Nomura had, now has or may
hereafter have or claim against the Malibu Released Parties, the MEIH
Released Parties, the MCI Released Parties and the SZ Released Parties
for, upon, or by reason of any matter, cause or thing whatsoever
directly or indirectly arising in connection with, or related to, (i)
the Loans (or any one or more of such Loans) including, without
limitation and as applicable, claims of fraud, usury,
misrepresentation, breach of representation or warranty, wrongful
foreclosure, impairment to collateral or of right of recourse,
enforcement or failure to enforce obligations of liable third parties
with respect to any collateral security, waiver or failure to protect
or perfect any such collateral security, violation or breach of
covenant, default, and other acts or omissions, matters or events
related to the Loans and any and all documentation evidencing the Loans
or arising in connection therewith, as well as the transactions or
occurrences reflected in or giving rise to the Loans, (ii) the
operation of any one or more of the Malibu Parties, their subsidiaries
and affiliates (and the parks or other properties owned, held and/or
operated by any of such parties) during the period of time that the
Loans (or any one or more of them) have been in effect between the
parties, (iii) any financing or refinancing arrangements made between
any one or more of the Malibu Parties including, without limitation,
the SZ Loan and the Malibu Loans, and any transactions or occurrences
reflected in or giving rise thereto or to the recapitalization of
Malibu, and (iv) the transactions, occurrences and situations giving
rise to, and reflected in, the Prior Agreement, the Agreement and the
Transaction Documents; provided, however, that this Release does not
operate to reduce, release or waive the obligations of any of the
Malibu Released Parties, the MEIH Released Parties, the MCI Released
Parties or the SZ Released Parties arising under the Agreement and the
Transaction Documents; and provided further that notwithstanding
anything contained herein to the contrary, the Nomura Claims do not
include any claims which may arise under terms of the MCI Loan and the
MEIH Loan which expressly survive the repayment in full of such loans.
6. COVENANTS NOT TO XXX.
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(a) OF MALIBU. Malibu hereby covenants and agrees, for and on
behalf of itself and for the applicable Malibu Releasing
Parties, that it shall forever refrain, and is hereby
estopped, from instituting, prosecuting, asserting or
otherwise pursuing or pressing against any Nomura Released
Party, any MEIH Released Party, any MCI Released Party and/or
any SZ Released Party any Malibu Claim, whether or not arising
in connection with any Rights of Malibu, which it has released
pursuant to Paragraph 1 hereof.
(b) OF MEIH. MEIH hereby covenants and agrees, for and on behalf
of itself and for the applicable MEIH Releasing Parties, that
it shall forever refrain, and is hereby estopped, from
instituting, prosecuting, asserting or otherwise pursuing or
pressing against any Nomura Released Party, any Malibu
Released Party, any MCI Released Party and/or any SZ Released
Party any MEIH Claim, whether or not arising in connection
with any Rights of MEIH, which it has released pursuant to
Paragraph 2 hereof.
(c) OF MCI. MCI hereby covenants and agrees, for and on behalf of
itself and for the applicable MCI Releasing Parties, that it
shall forever refrain, and is hereby estopped, from
instituting, prosecuting, asserting or otherwise pursuing or
pressing against any Nomura Released Party, any Malibu
Released Party, any MEIH Released Party and/or any SZ Released
Party any MCI Claim, whether or not arising in connection with
any Rights of MCI, which it has released pursuant to Paragraph
3 hereof.
(d) OF SZ. SZ hereby covenants and agrees, for and on behalf of
itself and for the applicable SZ Releasing Parties, that it
shall forever refrain, and is hereby estopped, from
instituting, prosecuting, asserting or otherwise pursuing or
pressing against any Nomura Released Party, any Malibu
Released Party, any MEIH Released Party and/or any MCI
Released Party any SZ Claim, whether or not arising in
connection with any Rights of SZ, which it has released
pursuant to Paragraph 4 hereof.
(e) OF NOMURA. Nomura hereby covenants and agrees, for and on
behalf of itself and for the applicable Nomura Releasing
Parties, that it shall forever refrain, and is hereby
estopped, from instituting, prosecuting, asserting or
otherwise pursuing or pressing against any Malibu Released
Party, any MEIH Released Party, any MCI Released Party and/or
any SZ Released Party any Nomura Claim, whether or not arising
in connection with any Rights of Nomura, which it has released
pursuant to Paragraph 5 hereof.
7. SPECIFIC ENFORCEMENT. The provisions of this Release shall be subject
to specific enforcement by any party hereto.
8. GOVERNING LAW. THIS RELEASE SHALL BE GOVERNED BY, AND ITS TERMS AND
PROVISIONS SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF GEORGIA (WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW PROVISIONS).
9. COUNTERPARTS. This Release may be executed in one or more counterparts
and by facsimile signature. Each of the counterparts shall be deemed an
original for
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all purposes, and all counterparts taken together shall constitute a
single, complete instrument.
10. AMENDMENT. The terms and provisions of this Release may not be modified
or amended except in a writing executed by all of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Release to be
duly executed by their duly authorized representatives, all as of the day and
year first above written.
MALIBU:
MALIBU ENTERTAINMENT WORLDWIDE, INC.,
a Georgia corporation
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
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Title: Chief Executive Officer
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MCI:
MALIBU CENTERS, INC.,
a Delaware corporation
By: /s/ R. XXXXX XXXXXXX
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Name: R. Xxxxx Xxxxxxx
--------------------------------
Title: Vice President
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NOMURA:
NOMURA ASSET CAPITAL CORPORATION,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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MEIH:
MEI HOLDINGS, L.P.,
a Delaware limited partnership
By: MEI GENPAR, L.P.,
a Delaware limited partnership,
its general partner
By: HH GenPar Partners,
a Texas general partnership,
its general partner
By: Hampstead Associates, Inc.,
a Texas corporation,
a managing general partner
By: /s/ XXXXXX X. MIGICCUSKY
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Name: Xxxxxx X. Migiccusky
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Title: Vice President
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SZ:
SZ CAPITAL, L.P.,
a Delaware limited partnership
By: SZ GENPAR, L.P.,
a Delaware limited partnership,
its general partner
By: HH GenPar Partners,
a Texas general partnership,
its general partner
By: Hampstead Associates, Inc.,
a Texas corporation,
a managing general partner
By: /s/ XXXX X .READ
----------------------------
Name: Xxxx X .Read
--------------------------
Title: Vice President
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