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Exhibit 10.13
ALL INDEBTEDNESS EVIDENCED BY THIS AMENDED AND RESTATED SUBORDINATED
PROMISSORY NOTE IS SUBORDINATED TO OTHER INDEBTEDNESS PURSUANT TO, AND
TO THE EXTENT PROVIDED IN, AND IS OTHERWISE SUBJECT TO THE TERMS OF,
THE AMENDED AND RESTATED SUBORDINATION AGREEMENT, DATED AS OF JUNE 27,
1997, AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME, BY AND AMONG MALIBU ENTERTAINMENT WORLDWIDE, INC.,
AS BORROWER, MEI HOLDINGS, L.P., AS SUBORDINATED LENDER, AND FOOTHILL
CAPITAL CORPORATION, AS SENIOR LENDER.
AMENDED AND RESTATED SUBORDINATED PROMISSORY NOTE
$30,000,000 New York, N.Y.
June 5, 1997
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 c/o The
Hampstead Group, 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 Thirty
Million United States Dollars ($30,000,000), 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 Holder 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 August 31, 2001 (the
"Maturity Date"). Maker may, at its option and upon three (3) 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.
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 shall be adjusted monthly on the Determination Date;
(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
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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 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 be 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 Holder 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 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
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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 to fund its working capital requirements and to repay indebtedness
of the Maker the proceeds of which were used by Maker solely to fund its
working capital requirements.
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
at the Default Rate until paid. 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 (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 (including interest calculated at the Default Rate) exceed
the maximum rate of interest permitted by applicable law (the "Maximum
Amount"), and in the event such payment is inadvertently paid 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 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
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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 remaining provisions of
this Note.
This Note was negotiated in New York, and made by Holder and
accepted by Maker in the State of New York, 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 New York 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 governs this Note, and this Note shall be governed by and
construed in accordance with the laws of the State of New York pursuant to
Section 5-1401 of the New York General Obligations Law.
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 THAT, TO THE FULLEST EXTENT THAT IT MAY LAWFULLY DO SO, 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 or delegate this Note or any of its
rights or obligations hereunder without the prior consent of Holder (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.
This Note amends and restates the $10,000,000 Subordinated
Promissory Note, dated June 5, 1997, from Maker payable to the order of Holder.
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:
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Name:
Title:
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