EXHIBIT 10.29
LOAN AGREEMENT
THIS LOAN AGREEMENT (as amended, restated, replaced, supplemented or
otherwise modified from time to time, this "AGREEMENT") is executed on
September 7, 2001 (the "EFFECTIVE DATE"), by and between OLD HILL PARTNERS
INC., a Delaware corporation ("LENDER"), and MALIBU ENTERTAINMENT WORLDWIDE,
INC., a Georgia corporation ("BORROWER").
In addition to the capitalized terms introduced and defined elsewhere in
this Agreement (which capitalized terms shall have the meanings ascribed to
them), other capitalized terms used herein shall have the respective meanings
ascribed thereto as set forth in Article I hereof.
RECITALS:
A. Borrower may, in its sole discretion, request Lender to loan funds to
Borrower from time to time.
B. Lender is willing to make such loans to Borrower in an aggregate
principal amount of up to $3,500,000 on the terms and conditions hereinafter
set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of the covenants, agreements,
representations and warranties set forth in this Agreement, the parties hereto
hereby covenant, agree, represent and warrant as follows:
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION
SECTION 1.1 DEFINITIONS. For all purposes of this Agreement, except
as otherwise expressly required or unless the context clearly indicates a
contrary intent:
"ADVANCE" shall mean each advance of the Loan.
"ADVANCE REQUEST" shall have the meaning set forth in Section 3.1.1.
"AFFILIATE" shall mean, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person or is a director or executive officer of such Person.
"APPLICABLE INTEREST RATE" shall mean a rate equal to eighteen
percent (18%) per annum, compounded annually.
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code, as
amended.
"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.
"CLOSING DATE" shall mean the date hereof.
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"CODE" shall mean the Internal Revenue Code of 1986, as amended, and
as it may be further amended from time to time, any successor statutes thereto,
and applicable U.S. Department of Treasury regulations issued pursuant thereto
in temporary or final form.
"DEBT" shall mean the outstanding principal amount set forth in, and
evidenced by, the Note together with all interest accrued and unpaid thereon and
all other sums due to Lender in respect of the Loan under the Note, this
Agreement, or any other Loan Documents.
"DEFAULT" shall have the meaning set forth in Section 7.1.1.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"EVENT OF DEFAULT" shall have the meaning set forth in Section 7.1.1.
"FINANCING PERIOD" shall have the meaning set forth in Section 2.1.
"FISCAL YEAR" shall mean each twelve-month period commencing on
January 1 and ending on December 31 during the term of the Loan.
"FOOTHILL LOAN AGREEMENT" shall have the meaning set forth in Section
7.1.1(i).
"GAAP" shall mean generally accepted accounting principles in the
United States of America, consistently applied.
"GOVERNMENTAL AUTHORITY" shall mean any court, body, board, agency,
commission, office or authority of any nature whatsoever for any governmental or
regulatory xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or otherwise)
whether now or hereafter in existence.
"INITIAL ADVANCE DATE" shall mean the date on which Lender shall make
the first Advance to Borrower under this Agreement.
"LOAN" shall mean, in the aggregate, the Advances made by Lender to
Borrower, as set forth in, and evidenced by, the Note and the other Loan
Documents.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Note
and any other document executed and/or delivered by Borrower in connection with
the Loan.
"MATERIAL ADVERSE CHANGE" shall mean a material adverse change in any
of the following (i) the condition (financial or otherwise), business,
performance, operations or properties of Borrower and its Subsidiaries, taken as
a whole, (ii) the legality or validity of any of the Loan Documents, or (iii)
Borrower's ability to pay the Debt in accordance with the terms hereof and
otherwise substantially comply with the material terms of this Agreement.
"MATURITY DATE" shall mean the date on which the final payment of
principal of the Note becomes due and payable as therein provided, whether at
the Stated Maturity, upon the occurrence of the contingency described in Section
2.4(d) of this Agreement, by declaration of acceleration, or otherwise.
"MAXIMUM LOAN AMOUNT" shall have the meaning set forth in Section 2.1.
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"NOTE" shall mean that certain Promissory Note dated as of the date hereof
and in substantially the form attached hereto as Exhibit "A", made by Borrower
in favor of Lender, executed by Borrower, and payable by Borrower to Lender as
specified therein, in the original principal sum of up to $3,500,000 as the same
may be increased, amended, restated, replaced, supplemented or otherwise
modified from time to time, and all notes issued upon transfer, division or
combination of, or in substitution for, the Note.
"OBLIGATIONS" shall mean any and all debt, liabilities and obligations of
Borrower to Lender in connection with the Loan, including, without limiting the
generality of the foregoing, the Debt.
"OFFICER'S CERTIFICATE" shall mean a certificate delivered to Lender by
Borrower which is signed by any authorized senior officer of Borrower.
"PARK" shall mean a SpeedZone(R) amusement park developed by Borrower or
one of its Subsidiaries.
"PERMITTED PURPOSES" shall have the meaning set forth in Section 2.3.
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, joint venture, estate, trust, unincorporated association, any
federal, state, county or municipal government or any bureau, department or
agency thereof and any fiduciary acting in such capacity on behalf of any of the
foregoing.
"STATED MATURITY" shall mean August 21, 2003; provided, however, that
Borrower may extend the Stated Maturity for one (1) additional year to
August 21, 2004 upon (a) delivery of written notice of such extension to Lender
on or before June 21, 2003, and (b) payment to Lender of an extension fee (the
"EXTENSION FEE") equal to one percent (1%) of the then-current outstanding
principal balance of the Loan as of the date of such extension notice (described
in the immediately preceding clause (a)), which Extension Fee may, at the
election of Borrower in its sole discretion, be paid with the proceeds of an
Advance in the amount of such Extension Fee if (i) at the time such Extension
Fee becomes payable, Advances equal to the Maximum Loan Amount have not been
made, and (ii) there remain sufficient funds available under this Agreement from
which an Advance to pay the Extension Fee may be made. In such event, Borrower
shall be entitled to request and receive an Advance to pay the Extension Fee
notwithstanding the fact that the Financing Period has expired.
"SUBSIDIARIES" shall mean any corporation, limited liability company,
partnership or other entity whose outstanding equity interests are owned 50% or
more by Borrower, by Borrower and one or more Subsidiaries or by one or more
Subsidiaries or which is otherwise controlled directly or indirectly by Borrower
to the extent necessary to require consolidation of its annual statements with
those of Borrower for financial reporting purposes in accordance with GAAP.
SECTION 1.2 PRINCIPLES OF CONSTRUCTION. All references to sections,
schedules and exhibits are to sections, schedules and exhibits in or to this
Agreement unless otherwise specified. Unless otherwise specified, the words
"hereof", "herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not any particular
provision of this Agreement. Unless otherwise specified, all
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meanings attributed to defined terms herein shall be equally applicable to
both the singular and plural forms of the terms so defined.
II. GENERAL TERMS
SECTION 2.1 ADVANCES. From and including the Closing Date until the
date which is twelve (12) months following the Closing Date (the "FINANCING
PERIOD"), subject to and upon the terms and conditions set forth herein. Lender
shall make one or more Advances to Borrower pursuant to this Agreement;
provided, however, that in no event will Lender make Advances totaling in
excess of $3,500,000 (the "MAXIMUM LOAN AMOUNT") to Borrower hereunder.
SECTION 2.2 THE NOTE. The Loan shall be evidenced by the Note of
Borrower. The Loan shall bear interest and shall be subject to repayment as
provided in the Note and in Section 2.4 hereof. The holder of the Note shall be
entitled to the benefits of this Agreement.
SECTION 2.3 USE OF PROCEEDS. The Loan will be funded by Lender to
Borrower for use by Borrower for the following purposes (collectively, the
"PERMITTED PURPOSES"):
(a) development of one or more Parks; and
(b) payment of the Extension Fee in accordance with the terms of this
Agreement.
Borrower shall use the proceeds of the Loan solely for the Permitted Purposes.
SECTION 2.4 LOAN REPAYMENT. The Loan shall bear interest at the
Applicable Interest Rate. The unpaid principal indebtedness of the Loan and all
accrued and unpaid interest thereon shall become due and payable as follows:
(a) On the first day of the calendar month immediately following the
calendar month in which the Initial Advance Date occurs, Borrower
shall pay all interest accrued on the Loan since the Initial
Advance Date.
(b) Thereafter, on the first day of each succeeding calendar month
(each, an "INTEREST PAYMENT DATE"), Borrower shall pay all
accrued and unpaid interest on the Loan on such Interest Payment
Date.
(c) Borrower shall repay the entire outstanding principal
indebtedness of the Loan in full on the Maturity Date of the
Loan, together with (a) all accrued and unpaid interest thereon
up to (but excluding) the date of repayment, and (b) a fee (the
"EXIT FEE") in an amount equal to three percent (3%) of the total
amount of Advances made by Lender to Borrower under the terms of
this Agreement, less the aggregate amount of any Prepayment Fees
previously paid by Borrower to Lender.
(d) Any provision in this Agreement or the Note to the contrary
notwithstanding, in the event that the loan made to Borrower and
certain of its Subsidiaries pursuant to and evidenced by the
Foothill Loan
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Agreement (the "FOOTHILL LOAN") shall be paid in full, Borrower shall,
at the same time that the Foothill Loan is paid, repay the entire
outstanding principal indebtedness of the Loan together with (a) all
accrued and unpaid interest thereon up to (but excluding) the date of
repayment, and (b) a fee (the "EXIT FEE") in an amount equal to three
percent (3%) of the total amount of Advances made by Lender to Borrower
under the terms of this Agreement, less the aggregate amount of any
Prepayment Fees previously paid by Borrower to Lender.
Borrower may, at its option and upon sixty (60) days' prior notice to Lender,
prepay the Loan in whole or in part. If the Borrower prepays the Loan in whole,
the Borrower shall also pay the Exit Fee at the time of prepayment. If the
Borrower prepays the Loan in part, then such prepayment shall be accompanied by
a fee (the "PREPAYMENT FEE") in an amount equal to three percent (3%) of the
principal amount being repaid. Any Exit Fee payable by Borrower shall be
reduced dollar for dollar by the amount of all Prepayment Fees previously paid
by Borrower to Lender. Any prepayment made by Borrower and applied to reduce
the principal amount of the Loan shall permanently reduce the Maximum Loan
Amount dollar for dollar by the amount of such prepayment, and any principal
amount repaid may not be reborrowed by Borrower.
SECTION 2.5 RECOURSE. The Obligations are full recourse obligations of
Borrower.
SECTION 2.6 PAYMENTS AND COMPUTATIONS.
2.6.1 MAKING OF PAYMENTS. Each payment by Borrower hereunder or under the
Note shall be made in immediately available funds by 11:00 a.m., New York, New
York time, on the date such payment is due, to Lender by deposit to a bank
account specified by Lender from time to time in writing. Whenever any payment
hereunder or under the Note shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the first Business Day thereafter.
2.6.2 COMPUTATIONS. Interest payable hereunder or under the Note shall be
computed on the basis of the actual number of days elapsed based upon a 360-day
year.
SECTION 2.7 SECURITY. The payment of the Note and all Advances made under
the terms of this Agreement shall be secured by a mortgage or a deed of trust
(the "MORTGAGE") which shall grant Lender a lien on and security interest with
respect to the interest owned and held by Borrower or by Borrower's Subsidiary
in each of the real properties (the "MORTGAGED PROPERTIES") more particularly
described in Exhibit "B" attached hereto and incorporated herein by reference,
subject, however, to the following terms and conditions:
2.7.1 FORM OF MORTGAGE. Within ten (10) Business Days following the
Effective Date of this Agreement, Lender and Borrower shall negotiate and agree
on the basic form of Mortgage to be used to encumber the Mortgaged Properties
which are owned in fee by Borrower or Borrower's Subsidiaries, with such basic
form of Mortgage to be modified as necessary and appropriate (a) to encumber
the Mortgaged Properties in which Borrower or Borrower's Subsidiary owns a
leasehold interest, and (b) to comply with the respective laws of the state in
which such Mortgaged Properties are located.
2.7.2 EXISTENCE OF PRIOR LIEN. It is expressly understood and agreed that
the interest of Borrower or Borrower's Subsidiary, as the case may be, in each
of the Mortgaged
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Properties is or will be encumbered by a valid first and prior lien and prior
security interest securing payment of a current-existing and outstanding loan
evidenced by the Foothill Loan Agreement (each a "FIRST LIEN", and
collectively, the "FIRST LIENS"). It is further understood and agreed that the
liens on and security interests with respect to the Mortgaged Properties and
securing the Note and all Advances made under the terms of this Agreement shall
be inferior and subordinate in all respects to the First Liens.
2.7.3 CONSENTS. Lender and Borrower acknowledge, understand and agree (a)
that with respect to all of the Mortgaged Properties, no Mortgage may be placed
on a Mortgaged Property without the prior written consent of then-current owner
and holder of the First Lien on such Mortgaged Property (the "FIRST
LIENHOLDER"), and (b) that with respect to those Mortgaged Properties wherein
Borrower or Borrower's Subsidiary holds a leasehold interest as lessee, no
Mortgage may be placed on such Mortgaged Property without the prior written
consent of the lessor of the Mortgaged Property (the "LESSOR"). With respect to
those Mortgaged Properties where only the consent of the First Lienholder is
required to place a Mortgage on a Mortgaged Property, Borrower shall exert
reasonable commercial efforts, or shall cause Borrower's Subsidiary to exert
reasonable commercial efforts, (i) to obtain the written consent of the First
Lienholder, and (ii) to deliver to Lender a duly executed Mortgage in
recordable form within forty-five (45) days following the Effective Date of
this Agreement. With respect to those Mortgaged Properties where the consent of
both the First Lienholder and the Lessor are required to place a Mortgage on a
Mortgaged Property, Borrower shall exert reasonable commercial efforts, or
shall cause Borrower's Subsidiary to exert reasonable commercial efforts, (i)
to obtain the written consent of the First Lienholder and the written consent
of the Lessor, and (ii) to deliver to Lender a duly executed Mortgage in
recordable form within ninety (90) days following the Effective Date of this
Agreement.
2.7.4 IF CONSENTS CANNOT BE OBTAINED. In the event that Borrower or
Borrower's Subsidiary, as the case may be, exerts reasonable commercial efforts
to obtain the First Lienholder consents and the Lessor consents as contemplated
by Section 2.7.3 or by this Section 2.7.4 but is unable to obtain one or more of
such First Lienholder consents or Lessor consents, it is expressly understood
and agreed that the failure to obtain a First Lienholder consent or a Lessor
consent shall not under any circumstances constitute a Default or an Event of
Default under this Agreement, nor shall Borrower be deemed to be in breach of
this Agreement as a result thereof. In the event that the required Lessor
consent and/or First Lienholder consent cannot be obtained by Borrower or
Borrower's Subsidiary, as the case may be, with respect to a Mortgaged Property,
then no Mortgage shall be placed on such Mortgaged Property, and Borrower shall
notify Lender accordingly. If a Mortgage cannot be placed on at least the
following Mortgaged Properties: the Dallas SpeedZone, the Xxxxxx Hills
SpeedZone, any new Park and at least three of the remaining five Mortgaged
Properties, then Borrower or Borrower's Subsidiary, as the case may be, shall
exert reasonable commercial efforts to obtain and deliver to Lender a Mortgage
on one or more of the alternate properties (collectively, the "ALTERNATE
PROPERTIES" and individually, each an "ALTERNATE PROPERTY") more particularly
described in Exhibit C attached hereto and incorporated herein by reference,
which one or more Alternate Properties shall be designated by Lender. If
Borrower or Borrower's Subsidiary, as the case may be, cannot obtain any
required First Lienholder consent and/or Lessor consent within ninety (90) days
following the date on which Lender designates the one or more Alternate
Properties with respect to which a Mortgage is to be pursued, then no Mortgage
shall be placed on such Alternate Properties, and Borrower shall notify Lender
accordingly. Lender may then designate one or more remaining Alternate
Properties with respect to which Borrower or Borrower's Subsidiary, as the case
may be, shall exert reasonable commercial efforts to obtain a Mortgage, and the
same procedures and requirements as set forth above shall apply. In the
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event Borrower is unable to obtain a Mortgage on the designated Alternate
Properties, Borrower will use commercially reasonable efforts to provide such
alternate collateral with reasonably comparable value that is acceptable to
Lender in its sole discretion.
2.7.5 FURTHER ASSURANCES. In the event that a Mortgage is placed on a
Mortgaged Property or an Alternate Property, Borrower or Borrower's Subsidiary,
as the case may be, shall execute any and all additional instruments, documents,
certificates, financing statements or other agreements as Lender shall
reasonably request and that shall be necessary or appropriate to evidence,
perfect or maintain the lien and/or security interest of Lender with respect to
such Mortgaged Property or Alternate Property.
SECTION 2.8 CONSTRUCTION NEW PARK OR PARKS.
2.8.1 CONSTRUCTION FINANCING. Borrower or one of Borrower's Subsidiaries
intends to acquire vacant land (the "DEVELOPMENT TRACT") for the construction of
a new Park, and that at or about the time that such Development Tract is
acquired, Borrower or its Subsidiary will seek to obtain a loan to be used in
connection with the development and construction or such Park (the "CONSTRUCTION
FINANCING"), which Construction Financing will be secured by a first lien on
the land on which the Park will be developed and built. Lender shall have the
right to approve the terms and conditions of such Construction Financing. If the
secured lender or lenders providing the Construction Financing will permit its
security for such Construction Financing (including the Development Tract) to
be encumbered by a lien that is inferior to the lien securing the Construction
Financing, then Borrower shall execute and record, or cause to be executed and
recorded, the documents that are necessary to grant such lien to Lender,
including but not limited to an inter-creditor agreement; provided, however,
that Borrower shall have no liability to Lender if the lender or lenders
providing the Construction Financing will not permit any lien on the security
for such Construction Financing other than the lien securing the Construction
Financing. Notwithstanding the foregoing, in the event Borrower acquires the
Development Tract prior to closing on its Construction Financing, Borrower will
grant Lender a first lien on the Development Tract and in connection with
Lender's approval of such Construction Financing. Lender will agree to
subordinate its lien on the Development Tract to the Construction Financing in
accordance with the foregoing.
2.8.2 PAYMENT AND PERFORMANCE BOND REQUIREMENT. In connection with any
construction contract that Borrower enters into for the development and
improvement of the Development Tract, Borrower shall require the general
contractor to provide an appropriate payment and performance bond covering such
contractors, subcontractors and materialmen and their work.
III. CONDITIONS PRECEDENT
SECTION 3.1 CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's willingness to
make each Advance hereunder shall be conditioned upon the fulfillment by
Borrower or waiver by Lender of the following conditions precedent no later than
the Advance Funding Date.
3.1.1 ADVANCE REQUEST. Borrower shall have delivered to Lender a written
request for the Advance (such request, the "ADVANCE REQUEST"). The Advance
Request shall indicate the proposed amount of the Advance requested by Borrower,
the Permitted Purpose for which the Advance shall be used, and the date on which
Borrower requests Lender to make the Advance (the "ADVANCE FUNDING DATE").
Borrower shall deliver the Advance Request to Lender
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no later than ten (10) Business Days prior to the Advance Funding Date to which
such Advance Request relates. Borrower may make one or more Advance Requests
under this Agreement provided, however, that (a) an Advance Request shall be
not be made more often than once during any calendar month, (b) the minimum
amount of any Advance Request shall be $500,000, (c) the amount of any Advance
Request in excess of $500,000 shall be in multiples of $100,000, and (d) in no
event shall the amount of any one Advance Request or the aggregate total of all
Advance Requests submitted by Borrower to Lender ever exceed the Maximum Loan
Amount.
3.1.2 COMMITMENT FEE. On the Effective Date, Borrower shall pay to Lender
in cash a fee (the "COMMITMENT FEE") in the amount of $175,000.
3.1.3 REPRESENTATIONS AND WARRANTIES: COMPLIANCE WITH CONDITIONS. The
representations and warranties of Borrower contained in this Agreement and the
other Loan Documents shall be true and correct in all material respects on and
as of the Closing Date and the respective effective dates of each Advance
Request and Advance with the same effect as if made on and as of such date, and
no Default or Event of Default shall have occurred and be continuing; and
Borrower shall be in compliance in all material respects with all terms and
conditions set forth in this Agreement and in each other Loan Document on its
part to be observed or performed and no Material Adverse Change shall have
occurred.
3.1.4 AGREEMENT AND NOTE. Lender shall have received an original of this
Agreement and the Note relating thereto, in each case duly executed and
delivered on behalf of Borrower.
3.1.5 FINANCIAL STATEMENTS. Lender shall have received a certified copy of
the Borrower's financial statements for such periods as Lender may reasonably
request.
3.1.6 CERTIFICATES AND LEGAL MATTERS. Lender shall have received such
certificates and documentation relating to the Advance (including, without
limitation, all corporate and other proceedings) as Lender shall reasonably
require. The certificates, agreements and other documents referred to in this
Section 3.1 shall be delivered to Lender in form and substance reasonably
satisfactory to Lender, and all legal matters in connection with the Advance
shall be reasonably satisfactory in form and substance to Lender.
3.1.7 EXPENSES. Borrower shall have paid all reasonable out-of-pocket
expenses of the transactions to be consummated on the date of the Advance,
including, without limitation, all reasonable attorneys' fees, appraisal fees,
accounting fees, consultant fees, and other expenses of Lender.
3.1.8 AMENDMENTS TO LOAN DOCUMENTS. Borrower shall execute such amendments
to the Loan Documents as may be reasonably requested by Lender and as may be
required as a result of Lender's making an Advance, and such amendments shall
be in form and substance satisfactory to Lender.
3.1.9 NO INJUNCTION. On the Advance Funding Date, no law or regulation
shall have been adopted, no order, judgment or decree of any Governmental
Authority shall have been issued and no litigation shall be pending or
threatened which, in the good faith judgment of Lender, would result in a
Material Adverse Change or would enjoin, prohibit or restrain the making or
repayment of the Advance or the Loan, or the consummation of the transactions
contemplated by this Agreement or the other Loan Documents.
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3.1.10 RECORDATION OF MORTGAGES. Borrower shall have obtained the
Mortgages on the Mortgaged Properties and/or the Alternate Properties in
accordance with the requirements of Section 2.7, and such Mortgages shall have
been duly recorded or a lien on the alternate collateral as described in Section
2.7.4 shall have been duly filed or recorded.
3.1.11 PAYMENT AND PERFORMANCE BOND. Borrower shall have obtained the
payment and performance bond required by Section 2.8.2, and such payment and
performance bond shall be in full force and effect.
3.1.12 ACCEPTANCE OF BORROWINGS. The acceptance by Borrower of the
proceeds of an Advance shall constitute a representation and warranty by
Borrower to Lender that all of the conditions to be satisfied under this Section
3.1 in connection with the making of the Advance have been satisfied by Borrower
or waived in writing by Lender.
IV. REPRESENTATIONS AND WARRANTIES
SECTION 4.1 BORROWER REPRESENTATIONS. Borrower represents and warrants
as follows as of the Closing Date:
4.1.1 PROCEEDINGS. Borrower has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement and the
other Loan Documents. This Agreement and such other Loan Documents have been
duly executed and delivered by or on behalf of Borrower and constitute legal,
valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization and similar laws affecting rights of creditors
generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
4.1.2 NO CONFLICTS. The execution, delivery and performance of this
Agreement and the other Loan Documents by Borrower will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of Borrower or any Subsidiary
pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement,
partnership agreement, operating agreement or other agreement or instrument to
which Borrower or any Subsidiary is a party or by which any of Borrower's or any
Subsidiary's property or assets is subject, nor will such action result in any
violation of the provisions of any statute or any order, rule or regulation of
any Governmental Authority having jurisdiction over Borrower, any Subsidiary or
any of their respective properties or assets, and any consent, approval,
authorization, order, registration or qualification of or with any Governmental
Authority required for the execution, delivery and performance by Borrower of
this Agreement or any other Loan Documents has been obtained and is in full
force and effect.
4.1.3 FULL AND ACCURATE DISCLOSURE. No statement of fact made by
Borrower (i) in this Agreement or in any of the other Loan Documents, or (ii)
in any written materials relating to the business, operations or condition
(financial or otherwise) of Borrower or any Subsidiary that have been supplied
by or on behalf of Borrower or any Subsidiary to Lender in connection with the
Loan (other than financial projections made in good faith and based on
reasonable assumptions, in respect of which no representation is made) contains
(or, in the case of such written material, at the time supplied contained) any
untrue statement of a material
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fact or omits (or omitted, as the case may be) to sate any material fact
necessary to make the statements contained herein or therein not misleading.
4.1.4 NO PLAN ASSETS. Borrower is not an "employee benefit plan" (as
defined in Section 3(3) of ERISA), subject to Title 1 of ERISA, and none of the
assets of Borrower constitutes or will constitute "plan assets" of one or more
such employee benefit plans within the meaning of 29 C.F.R. Section 2510.3-101.
In addition, (i) Borrower is not a "governmental plan" within the meaning of
Section 3(32) of ERISA and (ii) transactions by or with Borrower are not
subject to state statutes regulating investments of, and fiduciary obligations
with respect to, governmental plans.
4.1.5 FINANCIAL INFORMATION. All financial data, including, without
limitation, any statements of cash flow and income and operating expense, that
have been delivered to Lender in respect of Borrower, (a) are true, complete and
correct in all material respects, (b) accurately present the financial condition
of Borrower as of the date of such reports, and (c) have been prepared in
accordance with GAAP consistently applied throughout the periods covered, except
as disclosed therein. Borrower does not have any material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments that are known
to Borrower and that are reasonably likely to result in a Material Adverse
Change. Since the date of such financial statements, there has been no
materially adverse change in the financial condition, operations or business of
Borrower from that set forth in such financial statements.
4.1.6 ENFORCEABILITY. The Loan Documents are not subject to any right of
rescission, set-off, counterclaim or defense by Borrower, including the defense
of usury, nor would the operation of any of the terms of the Loan Documents, or
the exercise of any right thereunder, render the Loan Documents unenforceable
except to the extent such unenforceability may be the result of bankruptcy,
insolvency, reorganization or similar laws affecting rights of creditors
generally or general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law), and Borrower has not asserted any
right of rescission, set-off, counterclaim or defense with respect thereto.
4.1.7 DEFAULT. No Default or Event of Default shall have occurred.
4.1.8 SURVIVAL OF REPRESENTATIONS. Borrower agrees that all of the
representations and warranties of Borrower set forth in Section 4.1 and
elsewhere in this Agreement and in the other Loan Documents shall survive for
so long as any Obligations remain owing to Lender by Borrower under this
Agreement, the Note or any other Loan Document. All representations,
warranties, covenants and agreements made by Borrower in this Agreement or in
the other Loan Documents shall be deemed to have been relied upon by Lender
notwithstanding any investigation heretofore made by Lender or on its behalf.
SECTION 4.2 LENDER REPRESENTATIONS. Lender represents and warrants as
follows as of the Closing Date:
4.2.1 PROCEEDINGS. Lender has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement. This
Agreement has been duly executed and delivered by or on behalf of Lender and
constitutes a legal, valid and binding obligation of Lender enforceable against
Lender in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and similar laws affecting rights of creditors
10
generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
4.2.2 NO CONFLICTS. The execution, delivery and performance of this
Agreement by Lender will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, change or encumbrance upon any of the
property or assets of Lender or any of its Affiliates pursuant to the terms of
any indenture, mortgage, deed of trust, loan agreement, partnership agreement,
operating agreement or other agreement or instrument to which Lender or any or
its Affiliates is a party or by which any of Lender's or any of its Affiliates'
property or assets is subject, nor will such action result in any violation of
the provisions of any statute or any order, rule or regulation of any
Governmental Authority having jurisdiction over Lender, any of its Affiliates
or any of their respective properties or assets, and any consent, approval,
authorization, order, registration or qualification of or with any Governmental
Authority required for the execution, delivery and performance by Lender of
this Agreement has been obtained and is in full force and effect.
4.2.3 SURVIVAL OF REPRESENTATIONS. Lender agrees that all of the
representations and warranties of Lender set forth in Section 4.2 and elsewhere
in this Agreement shall survive for so long as any Obligations remain owing to
Lender by Borrower under this Agreement, the Note or any other Loan Document.
All representations, warranties, covenants and agreements made by Lender in
this Agreement shall be deemed to have been relied upon by Borrower
notwithstanding any investigation heretofore or hereafter made by Borrower or
on its behalf.
V. AFFIRMATIVE COVENANTS
SECTION 5.1 BORROWER COVENANTS. From the date hereof and until payment and
performance in full of all Obligations of Borrower under the Loan Documents.
Borrower hereby covenants and agrees with Lender that:
5.1.1 EXISTENCE: COMPLIANCE WITH LAW. Borrower shall (i) do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its own and each of its Subsidiaries' existence and material rights, licenses,
permits and franchises, and (ii) comply with all laws applicable to it and each
of its Subsidiaries. Borrower shall at all times maintain, preserve and protect
all franchises and trade names and preserve all the remainder of its property
used or useful in, and material to, the conduct of its business, and from time
to time make, or cause to be made, all reasonably necessary repairs, renewals,
replacements, betterments and improvements thereto.
5.1.2 LITIGATION. Borrower shall give prompt written notice to Lender of
any litigation or governmental proceedings pending or threatened against
Borrower or any Subsidiary that might result in a Material Adverse Change.
5.1.3 NOTICE OF MATERIAL ADVERSE CHANGES AND DEFAULTS. Borrower shall
promptly advise Lender in writing of any Material Adverse Change, Default or
Event of Default of which Borrower has knowledge.
5.1.4 COOPERATION IN LEGAL PROCEEDINGS. Borrower shall cooperate fully
with Lender with respect to any proceedings before any court, board or other
Governmental Authority which may in any way affect the rights of Lender
hereunder or any rights obtained by
11
Lender under any of the other Loan Documents and, in connection therewith,
permit Lender, at its election, to participate in any such proceedings.
5.1.5 FURTHER ASSURANCES. Borrower shall, at Borrower's sole cost and
expense:
(a) furnish to Lender each and every document, certificate, agreement
and instrument required to be furnished by Borrower pursuant to the terms
of this Agreement or the other Loan Documents or reasonably requested by
Lender in connection therewith: and
(b) do and execute, as appropriate, all and such further lawful and
reasonable acts, conveyances and assurances for the better and more
effective carrying out of the intents and purposes of this Agreement and
the other Loan Documents as Lender shall reasonably require from time to
time.
5.1.6 FINANCIAL REPORTING.
(a) Borrower shall furnish to Lender annually, within 120 days
following the end of each Fiscal Year, Borrower's financial statements
(consisting of a balance sheet, profit and loss statement, and statement of
cash flow) for each such Fiscal Year, certified by the chief financial
officer of Borrower, to have been prepared in accordance with GAAP,
together with a certificate of such officer, addressed to Lender, stating
that, to such officer's knowledge, no Event of Default is in existence;
provided, however, that Borrower shall be deemed to have fully satisfied
the foregoing requirement in all respects if Borrower provides to Lender a
copy of any Form 10-K that Borrower files with the Securities and Exchange
Commission (the "S.E.C.") within five (5) Business Days following the date
on which such Form 10-K is filed with the S.E.C.
(b) Borrower shall also deliver to Lender a copy of any Form 10-Q that
Borrower files with the S.E.C. within five (5) Business Days following the
date on which such Form 10-Q is filed with the S.E.C.
(c) Borrower shall also deliver to Lender, at Lender's expense, all
other information, including financial reports, that Lender may reasonably
request relating to the financial condition of Borrower and its
Subsidiaries.
5.1.7 ESTOPPEL STATEMENTS. Within five (5) days after any request by
Lender, Borrower shall furnish Lender with an Officer's Certificate setting
forth (a) the amount of the original principal amount of the Note, (b) the
unpaid principal amount of the Note, (c) the Applicable Interest Rate of
the Note, (d) the date any installments of interest and principal were last
paid, (e) a description of offsets or defenses to the payment of the Debt,
if any, and (f) assurances that the Note, this Agreement and the other Loan
Documents are valid, legal and binding obligations of Borrower and have not
been modified or, if modified, giving the particulars of such modification.
5.1.8 LOAN PROCEEDS. Borrower shall use the proceeds of the Loan only
for the Permitted Purposes set forth in Section 2.3 hereof.
12
5.1.9 OFFICE OF BORROWER. As long as the Debt remains outstanding, Borrower
shall maintain an office or agency (which may be the principal executive offices
of Borrower) where the Note may be presented for payment as provided in the Note
and this Agreement.
VI. NEGATIVE COVENANTS
SECTION 6.1 BORROWER'S NEGATIVE COVENANTS. From the date hereof until
payment and performance in full of all Obligations of Borrower under the Loan
Documents, Borrower covenants and agrees with Lender that it will not do,
directly or indirectly, any of the following without Lender's prior written
consent:
6.1.1 DISSOLUTION. Borrower shall not dissolve, terminate or liquidate.
6.1.2 PRINCIPAL PLACE OF BUSINESS. Borrower shall not change its principal
place of business set forth in Section 8.7 without first giving Lender thirty
(30) days' prior written notice.
6.1.3 RELEASE OF CLAIMS. Borrower shall not cancel or otherwise forgive or
release any claim or debt owed to Borrower by any Person, except for adequate
consideration and in the ordinary course of Borrower's business.
6.1.4 AMENDMENTS TO ARTICLES OF INCORPORATION. Borrower shall not make any
amendment to its Articles of Incorporation that adversely impacts the ability of
Lender to enforce its rights under this Agreement, or adversely impacts Lender's
rights with respect to those certain warrants to be issued to Lender by Borrower
as described in Amendment Number Fifteen to Consolidated, Amended and Restated
Loan Agreement of even date herewith and executed by Borrower and certain of its
Subsidiaries and by Foothill Capital Corporation.
6.1.5 DIVIDENDS. Borrower shall not declare or pay any dividends on, or
make any other distributions in respect of, any shares of capital stock of
Borrower, except that Borrower may declare and make "payment in kind" dividends
or other distributions to the holders of its preferred stock, and may otherwise
declare and make any dividends or distributions, whether in cash or otherwise,
as may be required by the terms and conditions of such preferred stock.
VII. DEFAULTS
SECTION 7.1 EVENT OF DEFAULT
7.1.1 Each of the following events shall constitute an event of default
hereunder (an "EVENT OF DEFAULT") (and "DEFAULT" means the occurrence or
existence of any condition or event which with the giving of notice, or the
passage of time, or both, could become an Event of Default):
(a) Any principal of or interest on the Debt, or any other
Obligation, is not paid within five (5) Business Days of the date such
principal and/or interest payment on the Debt or other Obligation is due.
(b) Any representation or warranty made by Borrower herein or in any
other Loan Document, or in any report, certificate, financial statement or
other instrument, agreement or document furnished by or on behalf of
Borrower to Lender, shall have
13
been false or misleading in any material respect as of the date the
representation or warranty was made; provided, however, if such false or
misleading representation or warranty was not intentional or grossly negligent
and is capable of being cured within thirty (30) days, the same shall be an
Event of Default hereunder only if the same is not cured within a reasonable
time not to exceed thirty (30) days after notice from Lender.
(c) Borrower shall make an assignment for the benefit of creditors.
(d) A receiver, liquidator or trustee shall be appointed for Borrower, or
Borrower shall be adjudicated a bankrupt or insolvent, or any petition for
bankruptcy, reorganization or arrangement pursuant to the Bankruptcy Code or any
other federal bankruptcy law, or any similar federal or state law, shall be
filed by or against, consented to or acquiesced in by Borrower, or any
proceeding for the dissolution or liquidation of Borrower shall be instituted;
provided, however, that if such appointment, adjudication, petition or
proceeding was involuntary and not consented to by Borrower, then the same shall
be an Event of Default hereunder only if the same is not discharged, stayed or
dismissed within sixty (60) days after the date of such appointment or
adjudication, the date such petition is first filed or the date such proceeding
is instituted, as the case may be.
(e) Borrower shall attempt to assign its rights under this Agreement or
any of the other Loan Documents or any interest herein or therein in
contravention of the Loan Documents.
(f) Borrower shall breach any of its covenants contained in Section 5.1
and Section 6.1 hereof.
(g) Borrower shall continue to be in Default under any of the other
terms, covenants or conditions of this Agreement not specified in this Section
7.1.1, for ten (10) Business Days after notice to Borrower from Lender, in the
case of any Default which can be cured by the payment of a sum of money, or for
thirty (30) days after notice to Borrower from Lender in the case of any other
Default; provided, however, that if such non-monetary Default is capable of
being cured but cannot reasonably be cured within such 30-day period and
provided further that Borrower shall have commenced to cure such Default within
such 30-day period and thereafter diligently and expeditiously proceeds to cure
the same, such 30-day period shall be extended for such time as is reasonably
necessary for Borrower in the exercise of due diligence to cure such Default,
such additional period not to exceed sixty (60) days.
(h) There shall be default under any of the other Loan Documents beyond
any applicable cure periods contained in such documents, or any other such
event shall occur or condition shall exist, if the effect of such event or
condition is to accelerate the maturity of any portion of the Debt or to permit
Lender to accelerate the maturity of all or any portion of the Debt.
(i) Any final non-appealable judgment is rendered against Borrower and/or
any Subsidiary in excess of $250,000 which is not covered or indemnified by
insurance or for which Borrower has not established a reserve, and Borrower
fails to satisfy such judgment within the earlier of (a) ten (10) days after
the date such judgment is rendered, or (b) the date the judgment creditor
commences the process to execute and recover on said judgment.
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(j) There shall be a default under that certain Consolidated,
Amended, and Restated Loan and Security Agreement dated as of August 22,
1996, by and between Foothill Capital Corporation as lender and Borrower
and certain subsidiaries of Borrower as borrowers (as amended, extended and
modified, the "FOOTHILL LOAN AGREEMENT") beyond and applicable cure period
contained in such Foothill Loan Agreement, which default shall have
resulted in the indebtedness under the Foothill Loan Agreement becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness having
been discharged, or such acceleration having been rescinded or annulled,
within a period of ten (10) Business Days after notice shall have been
given to Borrower by Lender specifying such default and requiring Borrower
to cause such indebtedness to be discharged or cause such acceleration to
be rescinded or annulled.
(k) If within forty-five (45) days following the Effective Date there
has not been completed a transaction or series of transactions entered into
by or on behalf of Borrower or any of its Affiliates and resulting in the
acquisition or repurchase of all the Series BB Preferred Stock issued by
Borrower and owned and held by Partnership Acquisition Trust V, a Delaware
business trust, or any of its Affiliates (including but not limited to
Nomura Asset Capital Corporation).
(l) If Borrower obtains the required consent or consents with respect
to a Mortgaged Property as set forth in Section 2.7.3 but thereafter fails
to deliver to Lender a duly-executed Mortgage; provided, however, that
nothing contained in this Section 7.1.1(l) shall in any manner alter the
provisions of Section 2.7.4 that relieve Borrower of all liability to
deliver a Mortgage to Lender in the event that Borrower cannot obtain the
required consent or consents with respect to a Mortgaged Property.
7.1.2 Upon the occurrence of an Event of Default (other than an Event
of Default described in subsections (c), (d) or (e) above) and at any time
thereafter, Lender may, in addition to any other rights or remedies available to
it pursuant to this Agreement and the other Loan Documents or at law or in
equity, take such action, without notice or demand, as Lender deems advisable to
protect and enforce its rights against Borrower, including, without limitation,
declaring the Debt to be immediately due and payable, and Lender may enforce or
avail itself of any or all rights or remedies provided in the Loan Documents
against Borrower, including, without limitation, all rights or remedies
available at law or in equity; and upon any Event of Default described in
subsections (c), (d) or (e) above, the Debt and all other obligations of
Borrower hereunder and under the other Loan Documents shall immediately and
automatically become due and payable, without notice or demand, and Borrower
hereby expressly waives any such notice or demand, notwithstanding anything
contained herein or in any other Loan Document to the contrary.
SECTION 7.2 REMEDIES. Upon the occurrence of an Event of Default, all
or any one or more of the rights, powers, privileges and other remedies
available to Lender against Borrower under this Agreement or any of the other
Loan Documents executed and delivery by, or applicable to, Borrower or at law or
in equity may be exercised by Lender at any time and from time to time, whether
or not all or any of the Debt shall be declared due and payable, and whether or
not Lender shall have commenced any proceeding or action for the enforcement of
its rights and remedies under any of the Loan Documents. Any such actions taken
by Lender shall be cumulative and concurrent and may be pursued independently,
singly, successively, together or otherwise, at such time and in such order as
Lender may determine in its sole
15
discretion, to the fullest extent permitted by law, without impairing or
otherwise affecting the other rights and remedies of Lender permitted by law,
equity or contract or as set forth herein or in the other Loan Documents.
SECTION 7.3 REMEDIES CUMULATIVE. The rights, powers and remedies of Lender
under this Agreement shall be cumulative and not exclusive of any other right,
power or remedy which Lender may have against Borrower pursuant to this
Agreement or the other Loan Documents, or existing at law or in equity or
otherwise. Lender's rights, powers and remedies may be pursued singly,
concurrently or otherwise, at such time and in such order as Lender
may determine in Lender's sole discretion. No delay or omission to exercise any
remedy, right or power accruing upon an Event of Default shall impair any such
remedy, right or power or shall be construed as a waiver thereof, but any such
remedy, right or power may be exercised from time to time and as often as may
be deemed expedient. A waiver of any one or more Defaults or Events of Default
with respect to Borrower shall not be construed to be a waiver of any
subsequent Default or Event of Default by Borrower or to impair any remedy,
right or power consequent thereon. Any and all amounts collected or retained by
Lender while an Event of Default has occurred and is continuing may be applied
by Lender to payment of the Debt in any order or priority that Lender in its
sole discretion may elect.
VIII. MISCELLANEOUS
SECTION 8.1 TRANSFER, DIVISION AND COMBINATION.
8.1.1 TRANSFER. Lender may assign the Note and this Loan in whole or in
part at any time.
8.1.2 DIVISION AND COMBINATION. The Note may be divided or combined with
other Notes upon presentation thereof at the office of Borrower, together with
a written notice specifying the names and denominations in which new Notes are
to be issued, signed by Lender. Subject to compliance with Section 8.1.1, as to
any transfer which may be involved in such division or combination, Borrower
shall execute and deliver a new Note or Notes in exchange for the Note or Notes
to be divided or combined in accordance with such notice.
8.1.3 EXPENSES. Borrower shall prepare, issue and deliver at Lender's
expense (such expense including but not limited to any transfer taxes required
to be paid) the new Note or Notes under this Section 8.1.
8.1.4 MAINTENANCE OF BOOKS. Borrower agrees to maintain, at its office,
books for the registration or transfer of the Notes.
SECTION 8.2 SURVIVAL. This Agreement and all covenants, agreements,
representations and warranties made herein and in the certificates delivered
pursuant hereto shall survive the making by Lender of the Loan and the
execution and delivery to Lender of the Note, and shall continue in full force
and effect so long as all or any of the Debt is outstanding and unpaid or any
other Obligations or other amounts remain owing under the Loan Documents unless
a longer period is expressly set forth herein or in the other Loan Documents.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and permitted assigns, if
any, of such party. All covenants, promises and agreements in this Agreement,
by or on behalf of Borrower, shall inure to the benefit of the legal
representatives, successors and assignees of Lender.
16
SECTION 8.3 LENDER'S DISCRETION. Whenever pursuant to this Agreement,
Lender exercises any right given to it to approve or disapprove any document or
action, or any arrangement or term is to be satisfactory to Lender, the
decision of Lender to approve or disapprove such document or action or to
decide whether arrangements or terms are satisfactory or not satisfactory shall
(except as is otherwise specifically herein provided) be in the reasonable
discretion of Lender.
SECTION 8.4 GOVERNING LAW.
8.4.1 THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF DELAWARE, AND MADE BY
LENDER AND ACCEPTED BY BORROWER IN THE STATE OF DELAWARE, AND THE PROCEEDS OF
THE NOTE DELIVERED PURSUANT HERETO WERE OR ARE TO BE DISBURSED FROM THE STATE OF
DELAWARE, 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 LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF
THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER
HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW
OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTE, AND THIS
AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE.
8.4.2 ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY AT LENDER'S OPTION BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF WILMINGTON, COUNTY OF
NEW CASTLE, DELAWARE, AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR
HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES
HEREBY AGREE THAT ITS AUTHORIZED AGENT FOR PURPOSES OF THIS AGREEMENT SHALL BE
ANY OFFICER OF BORROWER LOCATED AT BORROWER'S ADDRESS SET FORTH IN SECTION 8.7
HEREOF, AND THAT SERVICE OF PROCESS UPON ANY SUCH OFFICER AND WRITTEN NOTICE OF
SUCH SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN
SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER, IN
ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF TEXAS. BORROWER (i) SHALL
GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT
HEREUNDER, (ii) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE
AUTHORIZED AGENT WITH AN OFFICE IN DALLAS, TEXAS (WHICH SUBSTITUTE AGENT AND
OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS),
AND (iii) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT
CEASES TO HAVE AN OFFICE IN DALLAS, TEXAS OR IS DISSOLVED WITHOUT LEAVING A
SUCCESSOR.
17
SECTION 8.5 MODIFICATION; WAIVER IN WRITING. No modification,
amendment, extension, discharge, termination or waiver of any provision of this
Agreement, or of the Note, or of any other Loan Document, nor consent to any
departure by Borrower therefrom, shall in any event be effective unless the same
shall be in a writing signed by Lender and Borrower, and then any such waiver or
consent shall be effective only in the specific instance, and for the purpose,
for which given. Except as otherwise expressly provided herein, no notice to, or
demand on Borrower, shall entitle Borrower to any other or future notice or
demand in the same, similar or other circumstances.
SECTION 8.6 DELAY NOT A WAIVER. Neither any failure nor any delay on
the part of Lender in insisting upon strict performance of any term, condition,
covenant or agreement, or exercising any right, power, remedy or privilege
hereunder, or under the Note or under any other Loan Document, or any other
instrument given as security therefor, shall operate as or constitute a waiver
thereof, nor shall a single or partial exercise thereof preclude any other
future exercise, or the exercise of any other right, power, remedy or privilege.
In particular, and not by way of limitation, by accepting payment after the due
date of any amount payable under this Agreement, the Note or any other Loan
Document, Lender shall not be deemed to have waived any right either to require
prompt payment when due of all other amounts due under this Agreement, the Note
or the other Loan Documents, or to declare a default for failure to effect
prompt payment of any such other amount.
SECTION 8.7 NOTICES. All notices, consents, approvals and requests
required or permitted hereunder or under any other Loan Document shall be given
in writing (including by facsimile) and shall be effective for all purposes if
hand delivered or sent by (a) certified or registered United States mail,
postage prepaid, or (b) expedited prepaid delivery service, either commercial or
United States Postal Service, with receipt of delivery, or (c) facsimile (with
acknowledged transmission), addressed as follows:
If to Borrower: Malibu Entertainment Worldwide, Inc.
000 Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: R. Xxxxx Xxxxxxx, CFO
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxxx, Esquire
Xxxxxx Xxxxx Xxxx & Xxxx, P.C.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to Lender: Old Hill Partners Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx Xxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx, Esquire
Xxxxxx Xxxxxxxx, LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
00
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
or at such other address and person as shall be designated from time to time by
any party hereto, as the case may be, in a written notice to the other party
hereto in the manner provided for in this Section 8.7. A notice shall be deemed
to have been given: in the case of hand delivery, at the time of delivery; in
the case of registered or certified mail, when delivered or the first attempted
delivery on a Business Day; in the case of expedited prepaid delivery, upon the
first attempted delivery on a Business Day; or in the case of facsimile, upon
acknowledged transmission (if a copy thereof is also sent by another method
authorized hereunder) on a Business Day.
SECTION 8.8 TRIAL BY JURY. BORROWER AND LENDER HEREBY AGREE NOT TO
ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT
TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS AGREEMENT, THE NOTE OR ANY OTHER LOAN DOCUMENT, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER
OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND BY
LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE
AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EITHER PARTY IS
HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION 8.8 IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.
SECTION 8.9 HEADINGS. The Article and/or Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
SECTION 8.10 SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
SECTION 8.11 PREFERENCES. Lender shall have the continuing and
exclusive right to apply or reverse and reapply any and all payments by Borrower
to any portion of the obligations of Borrower hereunder. To the extent Borrower
makes a payment or payments to Lender, which payment or proceeds or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then, to the extent of such payment or proceeds received, the obligations
hereunder or part thereof intended to be satisfied shall be revived and continue
in full force and effect, as if such payment or proceeds had not been received
by Lender.
SECTION 8.12 WAIVER OF NOTICE. Borrower shall not been entitled to
any notices of any nature whatsoever from Lender except with respect to matters
for which this Agreement or the other Loan Documents specifically and expressly
provide for the giving of notice by Lender to Borrower and except with respect
to matters for which Borrower is not, pursuant to applicable law, permitted to
waive the giving of notice. To the fullest extent permitted by applicable law,
Borrower hereby expressly waives the right to receive any notice from Lender
with respect to
19
any matter for which this Agreement or the other Loan Documents do not
specifically and expressly provide for the giving of notice by Lender to
Borrower.
SECTION 8.13 REMEDIES OF BORROWER. In the event that a claim or
adjudication is made that Lender or any agent of Lender has acted unreasonably
or unreasonably delayed acting in any case where, by law or under this Agreement
or the other Loan Documents, Lender or such agent, as the case may be, has an
obligation to act reasonably or promptly, Borrower agrees that neither Lender
nor its agents shall be liable for any monetary damages, and Borrower's sole
remedies shall be limited to commencing an action seeking injunctive relief or
declaratory judgment. The parties hereto agree that any action or proceeding to
determine whether Lender has acted reasonably shall be determined by an action
seeking declaratory judgment.
SECTION 8.14 EXHIBITS AND SCHEDULES INCORPORATED. Any exhibits and
schedules annexed hereto are hereby incorporated herein as a part of this
Agreement with the same effect as if set forth in the body hereof.
SECTION 8.15 OFFSETS, COUNTERCLAIMS AND DEFENSES. Any assignee of Lender's
interest in and to this Agreement, the Note and the other Loan Documents shall
take the same free and clear of all offsets, counterclaims or defenses which are
unrelated to such documents which Borrower may otherwise have against any
assignor of such documents, and no such unrelated counterclaim or defense shall
be interposed or asserted by Borrower in any action or proceeding brought by any
such assignee upon such documents and any such right to interpose or assert any
such unrelated offset, counterclaim or defense in any such action or proceeding
is hereby expressly waived by Borrower.
SECTION 8.16 NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY BENEFICIARIES.
8.16.1 Borrower and Lender intend that the relationships created hereunder
and under the other Loan Documents be solely that of borrower and lender.
Nothing herein or therein is intended to create a joint venture, partnership,
tenancy-in-common or joint tenancy relationship between Borrower and Lender nor
to grant Lender any interest in any collateral other than that of secured party
or Lender.
8.16.2 Unless otherwise expressly provided, this Agreement and the other
Loan Documents are solely for the benefit of Lender and Borrower, and nothing
contained in this Agreement or the other Loan Documents shall be deemed to
confer upon anyone other than Lender and Borrower any right to insist upon or to
enforce the performance or observance of any of the obligations contained herein
or therein. All conditions to the willingness of Lender to make the Loan
hereunder are imposed solely and exclusively for the benefit of Lender and no
other Person shall have standing to require satisfaction of such conditions
in accordance with their terms or be entitled to assume that Lender will refuse
to make the Loan in the absence of strict compliance with any or all thereof and
no other Person shall under any circumstances be deemed to be a beneficiary of
such conditions, any or all of which may be freely waived in whole or in part by
Lender if, in Lender's sold discretion, Lender deems it advisable or desirable
to do so.
SECTION 8.17 WAIVER OF COUNTERCLAIM. Borrower hereby waives the right to
assert a counterclaim, other than a compulsory counterclaim, in any action or
proceeding brought against it by Lender or its agents.
20
SECTION 8.18 CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE. In the event of
any conflict between the provisions of this Agreement and any of the other Loan
Documents, the provisions of this Agreement shall control. The parties hereto
acknowledge that they were represented by competent counsel in connection with
the negotiation, drafting and execution of the Loan Documents and that such Loan
Documents shall not be subject to the principle of construing their meaning
against the party which drafted same. Borrower acknowledges that, with respect
to the Loan, Borrower shall rely solely on its own judgment and advisors in
entering into the Loan without relying in any manner on any statements,
representations or recommendations of Lender or any parent, Subsidiary or
Affiliate of Lender. Lender shall not be subject to any limitation whatsoever in
the exercise of any rights or remedies available to it under any of the Loan
Documents or any other agreements or instruments which govern the Loan by virtue
of the ownership by it or by any parent, subsidiary or Affiliate of Lender of
any equity interest any of them may acquire in Borrower, and Borrower hereby
irrevocably waives the right to raise any defense or take any action on the
basis of the foregoing with respect to Lender's exercise of any such rights or
remedies. Borrower acknowledges that Lender may engage in the business of real
estate, entertainment and amusement financings and other transactions and
investments which may be viewed as adverse to or competitive with the business
of Borrower or its Affiliates.
SECTION 8.19 BROKERS AND FINANCIAL ADVISORS. Any financial advisor, broker,
underwriter, placement agent, agent or finder (collectively, the "AGENT")
engaged by either party to this Agreement in connection with the transactions
contemplated by this Agreement shall be paid by the party engaging such Agent in
accordance with the terms and conditions of a separate agreement by and between
the Agent and the party engaging the Agent. Borrower hereby agrees to indemnify
and hold Lender harmless from and against any and all claims, liabilities, costs
and expenses of any kind in any way relating to or arising from a claim by any
Person that such Person acted as an Agent on behalf of Borrower in connection
with the transactions contemplated herein. Lender hereby agrees to indemnify and
hold Borrower harmless from and against any and all claims, liabilities, costs
and expenses of any kind in any way relating to or arising from a claim by any
Person that such Person acted as an Agent on behalf of Lender in connection with
the transactions contemplated herein. The provisions of this Section 8.19 shall
survive the expiration and termination of this Agreement and the payment of the
Debt.
SECTION 8.20 LOSS OR MUTILATION. Upon receipt by Borrower from Lender of
evidence reasonably satisfactory to Borrower of the ownership of and the loss,
theft, destruction or mutilation of the Note and indemnity reasonably
satisfactory to Borrower, and in case of mutilation upon surrender and
cancellation thereof, Borrower will execute and deliver in lieu thereof a new
Note of like tenor to Lender; provided, in the case of mutilation, no indemnity
shall be required if the Note in identifiable form is surrendered to Borrower
for cancellation.
SECTION 8.21 PRIOR AGREEMENTS. THE LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
21
SECTION 8.22 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all signing parties had signed the same
document. All counterparts shall be construed together and constitute the same
document. In making proof of this Agreement, it shall not be necessary to
account for more than one counterpart executed by the party against whom
enforcement is sought.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives, all as of the day and
year first above written.
BORROWER:
MALIBU ENTERTAINMENT WORLDWIDE, INC.,
a Georgia corporation
By: ___________________________________
Name: R. Xxxxx Xxxxxxx
Title: Chief Financial Officer
LENDER:
OLD HILL PARTNERS INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxx
___________________________________
Name: Xxxx Xxxxxx
Title: Secretary
23
EXHIBIT A
TO
LOAN AGREEMENT
FORM OF PROMISSORY NOTE
(ATTACHED)
24
PROMISSORY NOTE
$3,500,000
September 7, 2001
This Promissory Note (this "Note") is evidence of that certain loan made by
Holder to Maker contemporaneously herewith and is executed pursuant to, and is
subject to the terms and conditions of, that certain Loan Agreement of even date
herewith between Holder (as hereinafter defined) and the undersigned Maker (as
amended, supplemented or otherwise modified from time to time, the "Loan
Agreement"). All capitalized or defined terms used herein without a definition
shall have the meanings ascribed to such terms as set forth in the Loan
Agreement.
FOR VALUE RECEIVED, Maker promises to pay to the order of OLD HILL
PARTNERS INC. (together with any subsequent holder of this Note, "Holder"), at
its offices located at 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxx 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 Three Million Five
Hundred Thousand and No/100 United States Dollars ($3,500,000.00), together
with interest thereon, from the date of each of such advances, on the unpaid
principal balance at the rate and as otherwise herein provided. Unless
otherwise specified by Holder in writing, all payments on this Promissory Note
(this "Note") shall be made in lawful money of the United States of America and
in immediately available funds.
Interest shall accrue on the unpaid principal balance of this Note at the
rate of eighteen percent (18%) per annum. Accrued but unpaid interest shall be
compounded annually. Interest on the unpaid principal balance of this Note
shall be computed on the actual number of days elapsed, based on a year of 360
days.
The unpaid principal amount of this Note and all accrued and unpaid
interest thereon shall become due and payable as follows:
a. On the first day of the calendar month immediately following the
calendar month in which the Initial Advance Date occurs, Maker shall
pay all interest accrued on this Note sine the Initial Advance Date.
b. Thereafter, on the first day of each succeeding calendar month (each,
an "Interest Payment Date"), Maker shall pay all then-accrued and
unpaid interest on this Note on such Interest Payment Date.
c. Maker shall repay the entire outstanding principal amount of this Note
in full on August 21, 2003 (the "Maturity Date"), together with (a)
all accrued and unpaid interest thereon up to (but excluding) the date
of repayment, and (b) a fee (the "Exit Fee") in an amount equal to
three percent (3%) of the total amount of Advances made by Holder to
Borrower under the terms of the Loan Agreement, less the amount of any
Prepayment Fees (as hereinafter defined) previously paid by Maker to
Holder; provided, however, that Maker may extend the Maturity Date for
one additional year to August 21, 2004 upon (i) delivery of written
notice of such extension to Holder on or before June 21, 2003, and
(ii) payment to Holder of an
25
extension fee (the "Extension Fee") equal to one percent (1%) of the
then-current outstanding principal balance of this Note as of the date
of such Extension Notice (described in the immediately preceding
clause (i)), which Extension Fee may be added to the principal balance
of the Note in lieu of payment on such date upon the election of Maker
in its sole discretion; provided, however, that (A) the sum of all
advances previously made to Maker under this Note is less than
$3,500,000.00, and (B) there remains sufficient unadvanced funds
hereunder from which an advance to pay the Extension Fee may be made.
d. Any provision in this Note or in the Loan Agreement to the contrary
notwithstanding, in the event that the loan made to Maker and certain
of its Subsidiaries pursuant to and evidenced by the Foothill Loan
Agreement (the "Foothill Loan") shall be paid in full. Maker shall, at
the same time that the Foothill Loan is paid, repay the entire
outstanding principal indebtedness of this Note together with (a) all
accrued and unpaid interest thereon up to (but excluding) the date of
repayment, and (b) a fee (the "Exit Fee") in an amount equal to three
percent (3%) of the total amount of Advances made by to Borrower under
the terms of the Loan Agreement, less the aggregate amount of any
Prepayment Fees previously paid by Maker to Holder.
The payment of this Note is secured by and in accordance with the terms
and conditions of those certain Mortgages on certain Mortgaged Properties, all
as more particularly described in the Loan Agreement.
Maker may, at its option and with sixty (60) days' prior notice to Holder,
prepay in whole or in part the outstanding principal balance of this Note. If
Maker prepays the outstanding principal balance in part, Maker shall pay a
prepayment fee (the "Prepayment Fee" and, collectively, the "Prepayment Fees")
equal to three percent (3%) of the outstanding principal amount being repaid.
If Maker prepays the outstanding principal balance in whole, Maker shall also
pay the Exit Fee at the time of prepayment; provided, however, that there shall
be deducted from the amount of such Exit Fee the amount of all Prepayment Fees
previously paid by Maker to Holder.
Holder shall maintain an account or accounts evidencing the indebtedness
of Maker to Holder resulting from each advance made by Holder, 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.
Maker shall use the proceeds of the loan evidenced by this Note solely for
Permitted Purposes as more particularly described in the Loan Agreement.
If Maker fails to make any payment of principal, accrued and unpaid
interest or any other amount due hereunder on or before five (5) Business Days
after the respective due dates therefor, Maker shall also pay to Holder, 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
26
(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 for payment, protest, notice of dishonor, notice of nonpayment,
notice of acceleration, notice of the intent to accelerate, protest and
demand, notice of protest, protest suit against any party, diligence in
collection of this Note, and all other requirements necessary to enforce this
Note.
In no event shall any payment or amount deemed to constitute interest due
or payable hereunder ever exceed the maximum rate of interest permitted by
applicable law (the "Maximum Amount"), and in the event such payment is
inadvertently made by Maker or inadvertently received by Holder, 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 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.
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 Holder
and its successors and assignees.
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 only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note.
This Note was negotiated in Delaware, and made by Maker and accepted
by Holder in the State of Delaware, 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 laws of
the State of Delaware 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 TO IRREVOCABLY WAIVE ITS RIGHTS TO TRIAL BY JURY, AND
ITS AGREEMENT THAT, TO THE FULLEST
27
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 Holder
(which consent may be given or withheld in the sole discretion of Holder).
Holder may assign this Note or any of its rights or obligations hereunder in
whole or in part, and/or delegate the same, without prior consent of or notice
to Maker.
THIS NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE MAKER AND THE HOLDER, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY.]
28
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.,
a Georgia corporation
By: __________________________________
Name: R. Xxxxx Xxxxxxx
Title: Chief Financial Officer
29
EXHIBIT B
TO
LOAN AGREEMENT
LIST OF MORTGAGED PROPERTIES
(ATTACHED)
30
DESCRIPTION OF MORTGAGED PROPERTIES
NAME OF PROPERTY OWNER NATURE OF OWNERSHIP
LOCATION OF PROPERTY OR LESSEE INTEREST (FEE OR LEASEHOLD)
-------------------- ---------------------- -------------------------------
Dallas SpeedZone Malibu Grand Prix Leasehold
00000 Xxxxxx Xxxxx Xxxxxxxxxxx,
Xxxxxx Xxxxxx a Delaware corporation
Xxxxxx, Xxxxx 00000
Mountasia of North Xxxx Malibu Entertainment Leasehold
000 Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxx.,
Xxxx Xxxxxx a Georgia corporation
Xxxxxxxx, Xxxxxxx 00000
Gwinnett MGP Malibu Entertainment Leasehold
0000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxx Xxx.,
Xxxxxxxx Xxxxxx a Georgia corporation
Xxxxxxxx, Xxxxxxx 00000
Redwood City MGP Malibu Grand Prix Leasehold
000 Xxxxxxxxx Xxxxxxxxxxx,
Xxx Xxxxx Xxxxxx a Delaware corporation
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxx Hills SpeedZone Malibu Centers, Inc., Leasehold
17871 Castleton a Delaware corporation
Xxx Xxxxxxx Xxxxxx
Xxxx xx Xxxxxxxx, Xxxxxxxxxx 00000
San Xxxxxxx Xxxxxx MGP Malibu Entertainment Leasehold
0000 Xxxxxx Xxxxx Xxxxx Xxxxxxxxx, Xxx.,
Xxxxx Xxxxxx a Delaware corporation
Xxx Xxxxxxx, Xxxxx 00000
Tampa MGP Amusement Management Fee (but will be the subject of
00000 Xxxxx Xxxxxxxx Florida, Inc., a sale and leaseback, at
Hillsborough County a Florida corporation which time the interest of
Xxxxx, Xxxxxxx 00000 Borrower shall be a
leasehold interest)
31
EXHIBIT C
TO
LOAN AGREEMENT
LIST OF ALTERNATE PROPERTIES
(ATTACHED)
32
DESCRIPTION OF ALTERNATE PROPERTIES
NAME OF PROPERTY OWNER OR NATURE OF OWNERSHIP
LOCATION OF PROPERTY LESSEE INTEREST (FEE OR LEASEHOLD)
-------------------- ------------------------- ---------------------------
Austin MGP Mountasia-MEI California, L.P., Leasehold
0000 X-00 Xxxxx a California limited partnership
Xxxxxx County
Xxxxxx, Xxxxx 00000
Columbus MGP Dallas Castle MGPC, a Texas Leasehold
0000 Xxxxxxx Xxxx xxxxxxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Houston Castle MGP Malibu Grand Prix Corporation, Leasehold
0000 Xxxx Xxxx Xxxxx a Delaware corporation
Xxxxxx County
Xxxxxxx, Xxxxx 00000
Kennesaw SpeedZone Malibu Entertainment Fee
3005 Xxxxxx Xxxxxx Pkwy. Worldwide, Inc., a Xxxxxxx
Xxxx County corporation
Xxxxxxxx, Xxxxxxx 00000
Mountasia of Henderson Malibu Entertainment Leasehold
0000 Xxxxxxx Xxxxxx Worldwide, Inc., a Xxxxxxx
Xxxxx County corporation
Xxxxxxxxx, Xxxxxx 00000
Mountasia of Kingwood Malibu Entertainment Fee
0000 Xxxxxx Xxxxxxx Xxxxxxxxx, Xxx., x Xxxxxxx
Xxxxxxxxxx Xxxxxx corporation
Xxxxxxxx, Xxxxx 00000
Mountasia of Plano Malibu Entertainment Leasehold
0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxx., x Xxxxxxx
Xxxxxx Xxxxxx corporation
Xxxxx, Xxxxx 00000
Mountasia of Willowbrook Malibu Centers, Inc., a Leasehold
00000 Xxxxxxx Xxxxxxx Delaware corporation
Xxxxxx County
Xxxxxxx, Xxxxx 00000
Redondo Beach Castle MGP Redondo Beach Castle MGPC, Leasehold
0000 Xxxxxx Xxxxxx Inc., a California corporation
Xxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx
00000
33