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EXHIBIT 99.12
NEITHER THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREUNDER, IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS.
SECOND AMENDED AND RESTATED
PROMISSORY NOTE
$10,000,000 Dallas, Texas
January 20, 1999
FOR VALUE RECEIVED, the undersigned, MALIBU ENTERTAINMENT WORLDWIDE,
INC., a Georgia corporation ("Maker"), promises to pay to the order of MEI
Holdings, L.P., a Delaware limited partnership (together with any subsequent
holder of this Note, "Holder"), at its offices located at 0000 Xxxx Xxxxxx,
Xxxxx 0000 Xxxx, Xxxxxx, Xxxxx 00000, or at such other address or to such
account as Holder may from time to time designate in writing, the unpaid
principal sum of all advances made by Holder to Maker from time to time in an
aggregate principal amount of up to Ten Million United States Dollars
($10,000,000), together with interest thereon from the date hereof on the unpaid
principal balance at the rate and otherwise as herein provided. Unless otherwise
specified by Xxxxxx in writing, all payments on this Note shall be made in
lawful money of the United States of America and in immediately available funds.
The unpaid principal amount of this Note and all accrued and unpaid
interest thereon shall become due and be paid on July 20, 1999 ("Maturity
Date").
Maker may, at its option and upon ten (10) Business Days' prior written
notice from Maker to Holder, prepay in whole or in part the outstanding
principal balance of this Note without payment of any premium or penalty;
provided, however, that in the event that Maker makes any prepayment of such
principal balance on a day other than the last day of an interest period, Maker
shall reimburse Holder for any costs, fees or expenses incurred by Holder in
connection with such prepayment including, without limitation, costs, fees and
expenses associated with the unwinding of any LIBOR contract.
For purposes of this Note: (i) "Applicable Interest Rate" shall mean a
rate per annum equal to LIBOR plus 350 basis points, which Applicable Interest
Rate for each one-month interest period shall be determined monthly on the
Determination Date immediately preceding such interest period; (ii) "Business
Day" shall mean any day other than a Saturday, Sunday or any other day on which
national banks in New York, New York are not open for business, (iii) "Default
Rate" shall mean a rate per annum (adjusted monthly on each Determination Date)
equal to the Applicable Interest Rate plus 500 basis points; provided, however,
in no event shall such rate exceed the maximum rate permitted by applicable law;
(iv) "Determination Date" shall mean the date which is two Eurodollar Business
Days prior to the first day of a calendar month; (v) "Eurodollar Business Day"
shall mean a Business Day on which banks in the City of London, England are open
for interbank or foreign exchange transactions, and (vi) "LIBOR" shall mean the
rate (expressed as a percentage per
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annum) for deposits in U.S. dollars, for a one-month period, that appears on
Telerate Page 3750 (or the successor thereto) as of 11:00 a.m., London, England
time, on the related Determination Date. If such rate does not appear on
Telerate Page 3750 as of 11:00 a.m., London, England time, on the related
Determination Date, LIBOR shall mean the arithmetic mean of the offered rates
(expressed as a percentage per annum) for deposits in U.S. dollars for a
one-month period, that appear on the Reuters Screen LIBOR Page as of 11:00 a.m.,
London, England time, on such Determination Date, if at least two such offered
rates so appear. If fewer than two such offered rates appear on the Reuters
Screen LIBOR Page as of 11:00 a.m., London, England time, on such Determination
Date, Holder shall request the principal London, England office of any four
major reference banks in the London interbank market selected by Holder to
provide such bank's offered quotation (expressed as a percentage per annum) to
prime banks in the London interbank market for deposits in U.S. dollars for a
one-month period as of 11:00 a.m., London, England time, on such Determination
Date for amounts of not less than U.S. $1,000,000. If at least two such offered
quotations are so provided, LIBOR shall be the arithmetic mean of such
quotations. If fewer than two such offered quotations are so provided, Holder
shall request any three major banks in New York City selected by Holder to
provide such bank's rate (expressed as a percentage per annum) for loans in U.S.
dollars to leading European banks for a one-month period as of approximately
11:00 a.m. New York City time, on the applicable Determination Date for amounts
of not less than U.S. $1,000,000. If at least two such rates are so provided,
LIBOR shall be the arithmetic mean of such rates. If fewer than two such rates
are so provided, then LIBOR shall be LIBOR as in effect on the Eurodollar
Business Day immediately preceding the applicable Determination Date. LIBOR
shall be determined in accordance with this paragraph by Xxxxxx or its agent.
Maker shall pay interest, in arrears for each one-month LIBOR interest
period (or portion thereof) from and including the first Business Day of each
calendar month (or from the date hereof in the case of the initial interest
period) to but excluding the first Business Day of the immediately succeeding
calendar month, on the unpaid principal balance of this Note from time to time
outstanding at the Applicable Interest Rate determined for each such one-month
interest period on the immediately preceding Determination Date, on the first
Business Day of each calendar month during the term of this Note. The balance of
the unpaid principal of this Note together with all accrued and unpaid interest
thereon shall be paid on the Maturity Date, all in accordance with the terms and
provisions set forth herein. Interest on the unpaid principal balance of this
Note shall be computed on the actual number of days elapsed, and a year of 360
days.
Holder shall maintain an account or accounts evidencing the
indebtedness of Maker to Holder resulting from each advance made by Xxxxxx,
including the amount of principal and interest payable and paid to Holder from
time to time hereunder. The entries made in such account or accounts shall be
prima facie evidence of the existence and the amounts of the obligations
recorded therein, provided that any failure of Holder to maintain such account
or accounts or any error therein shall not in any manner affect the obligation
of Maker to repay the advances made by Holder to Maker in accordance with the
terms of this Note.
Xxxxx agrees and acknowledges that Xxxxxx has no commitment of any kind
to advance funds to Maker and that all advances previously made by Xxxxxx to
Maker and all advances, if any, that may be made by Holder to Maker in the
future have been made and will be made at the sole and absolute discretion of
Holder.
If Maker fails to make any payment of principal, accrued and unpaid
interest or any other amount due hereunder on any due date therefor, whether at
stated maturity or otherwise, the unpaid amount (including, to the extent
enforceable at law, any unpaid amount of interest) shall bear interest until
paid at a rate per annum equal to the lesser of the Default Rate and the maximum
rate of interest permitted by applicable law (the "Maximum Amount"). Maker shall
also pay to Holder,
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in addition to the amount due, all reasonable costs and expenses incurred by
Holder in collecting or enforcing, or attempting to collect or enforce this
Note, including without limitation court costs and reasonable attorneys' fees
and expenses (including reasonable attorneys' fees and expenses on any appeal by
either Maker or Holder and in any bankruptcy proceeding).
With respect to the amounts due pursuant to this Note, Maker waives
demand, presentment, protest, notice of dishonor, notice of nonpayment, suit
against any party, diligence in collection of this Note, and all other
requirements necessary to enforce this Note.
In no event shall any amount deemed to constitute interest due or
payable hereunder exceed the Maximum Amount, and in the event such payment is
inadvertently paid by Maker or inadvertently received by Xxxxxx, then such sum
shall be credited as a payment of principal or other amounts (other than
interest) outstanding hereunder, and, if in excess of the outstanding amount of
principal or other amounts (other than interest) outstanding hereunder, shall be
immediately returned to Maker upon such determination. It is the express intent
hereof that Maker not pay and Holder not receive, directly or indirectly,
interest in excess of the Maximum Amount.
The whole of the principal sum of this Note, together with all interest
accrued and unpaid thereon and all other sums due hereunder and under any other
instruments or documents representing, evidencing, securing and/or relating to
or executed in connection with this Note (the "Loan Documents"), or any portion
thereof, shall without notice become immediately due and payable at the option
of Holder if any payment required in this Note or any other Loan Document is not
paid on the date on which it is due (after giving effect to any applicable grace
periods), or upon the happening of any other event of default under any other
Loan Document, or should Maker or any subsidiary thereof be in default with
respect to indebtedness in excess of $100,000, or should any event occur which
is specified in any note, agreement, indenture or other document evidencing or
relating to any such indebtedness of Maker or any subsidiary thereof, if the
effect of such event is to cause or (with the giving of any notice or the lapse
of time or both) to permit the holder or holders of such indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause such indebtedness
to become due or to be prepaid in full (whether by redemption, purchase or
otherwise) prior to its stated maturity.
That certain Agreement Regarding Right to Convert Promissory Notes of
even date herewith by and between Maker and Holder grants Holder the right at
any time to convert the outstanding balance of principal, interest and other
charges due or accrued under this Note (including any extensions of the term
hereof) into Series H Preferred Stock of Maker.
In addition, at any time during the term of this Note (including any
extensions of the term hereof) prior to such conversion, Holder may, by written
notice to Maker, convert this Note into one or more subordinated convertible
notes (the "Convertible SubNotes") having terms that the Investment Banker (as
defined below) advises Maker and Holder (which advice will be in the form of a
written term sheet but need not be given in the form of a formal opinion) would
be required to ensure that the proceeds to Holder of an immediate sale of the
Convertible SubNote would be sufficient to repay the sum of (i) the
then-outstanding principal and interest on this Note and (ii) all third party
costs incurred by Maker and Holder in an assumed secondary public offering by
Holder of the Convertible SubNote, including without limitation any SEC or other
filing fees, printing expenses, underwriting discounts and fees and other fees
and expenses (including attorneys' and accountants' fees and expenses). Within
20 calendar days of Maker's receipt of the foregoing notice, Xxxxxxx Xxxxx,
Xxxxxx Xxxxxx & Xxxxx Incorporated ("ML") (or any successor thereto) or, if such
firm is unwilling or unable to serve, another nationally recognized investment
banking firm will be selected by Xxxxxx and the members of the Board of
Directors of Maker not affiliated with Holder or employed by Maker (ML or such
other firm, the "Investment Banker"). In its engagement of the
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Investment Banker, Maker will obtain the Investment Banker's agreement to render
such advice as promptly as is practicable. If Xxxxxx is advised by legal counsel
that shareholder approval of the issuance of the Convertible SubNote or the
issuance of Common Stock upon conversion of the Convertible SubNote is required
by law or stock exchange rule, Maker will seek shareholder approval of the
issuance of the Convertible SubNotes at the earlier of the next annual or
special meeting of shareholders after the date hereof. The Convertible SubNote
and any Shares issued to the holder thereof upon conversion of the Convertible
SubNote will be "Registrable Securities" under the Registration Rights
Agreement, dated as of August 28, 1996, by and between Maker and Holder. Maker
will be responsible for all of its and Xxxxxx's fees and expenses (including the
Investment Bankers' and any attorneys' fees and expenses) in connection with the
execution and delivery of the amendment and restatement of this Note and any
other matters contemplated by this Note.
Holder shall not by any act, delay, omission, or otherwise be deemed to
have modified, amended, waived, extended, discharged, or terminated any of its
rights or remedies, and no modification, amendment, waiver, extension,
discharge, or termination of any kind shall be valid unless in writing and
signed by Holder. All rights and remedies of Holder under the terms of this Note
and applicable statutes or rules of law shall be cumulative, and may be
exercised successively or concurrently. Maker agrees that there are no defenses,
equities, or setoffs with respect to the obligations set forth herein, and to
the extent any such defenses, equities, or setoffs may exist, the same are
hereby expressly released, forgiven, waived, and forever discharged. The
obligations of Maker hereunder shall be binding upon and enforceable against
Maker and its successors and assigns and shall inure to the benefit of Xxxxxx
and its successors and assigns.
Wherever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note is prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the Note.
This Note was negotiated in Texas, and made by Xxxxxx and accepted by
Maker in the State of Texas, which State the parties agree has a substantial
relationship to the parties and to the underlying transaction embodied hereby,
and in all respects, including without limitation matters of construction,
validity, and performance, this Note and the obligations arising hereunder shall
be governed by, and construed in accordance with, the internal laws of the State
of Texas and any applicable law of the United States of America. To the fullest
extent permitted by law, Maker hereby unconditionally and irrevocably waives any
claim to assert that the laws of any other jurisdiction govern this Note.
MAKER, TO THE FULLEST EXTENT THAT IT MAY LAWFULLY DO SO, WAIVES TRIAL
BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING WITHOUT LIMITATION ANY TORT
ACTION, BROUGHT WITH RESPECT TO THIS NOTE. HOLDER MAY FILE A COPY OF THIS WAIVER
WITH ANY COURT AS WRITTEN EVIDENCE OF MAKER'S KNOWING, VOLUNTARY, AND BARGAINED
FOR AGREEMENT IRREVOCABLY TO WAIVE ITS RIGHTS TO TRIAL BY JURY, AND ITS
AGREEMENT THAT, TO THE FULLEST EXTENT LAWFULLY PERMISSIBLE, ANY DISPUTE OR
CONTROVERSY WHATSOEVER BETWEEN MAKER AND HOLDER SHALL INSTEAD BE TRIED IN A
COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
Maker may not assign this Note or any of its rights or obligations
hereunder, nor delegate the same, without the prior written consent of Xxxxxx
(which consent may be given or withheld in the sole discretion of Holder).
Holder may assign or delegate this Note or any of its rights or obligations
hereunder without prior consent of or notice to Maker.
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This indebtedness evidenced by this Note constitutes "Current MEIH
Advances" under that certain Consolidated, Amended, and Restated Loan and
Security Agreement, dated as of August 22, 1996 and as amended, supplemented and
otherwise modified from time to time, by and among Foothill Capital Corporation,
Maker and various subsidiaries of Maker.
This Note amends and restates the Amended and Restated Promissory Note,
dated as of March 27, 1998, from Maker payable to the order of Holder in the
principal sum of $10,000,000, and is being issued in replacement of and is
substitution for such promissory note.
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IN WITNESS WHEREOF, Maker has caused this Note to be duly
executed on its behalf as of the day and year first above written.
MALIBU ENTERTAINMENT WORLDWIDE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Chief Executive Officer
