EXHIBIT 10(b)(1)
FIFTH MODIFICATION AGREEMENT
Date: Effective January 10, 2000
Bank One: BANK ONE, TEXAS, NATIONAL ASSOCIATION,
a national banking association
Bank One's Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Company:
CEC ENTERTAINMENT, INC. (f/k/a ShowBiz Pizza
Time, Inc.), a Kansas corporation
Company's Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
R E C I T A L S:
A. Bank One and Company entered into a Loan evidenced, inter alia,
by the following documents:
1. Loan Agreement dated as of June 27, 1995 by and between
Company and Bank One for an aggregate Loan in the amount of
$5,000,000.
2. Revolving Credit Note dated June 27, 1995 in the
original principal amount of $5,000,000 signed by Company and
payable to Bank One.
B. Bank One and Company modified the Loan to increase its principal
balance to $15,000,000, extend the maturity date to June 15, 1998
and make certain other changes in the terms and conditions of the
Loan evidenced, inter alia, by the following documents:
1. Modification and Extension Agreement dated August 1,
1996 by and between Company and Bank One for an aggregate Loan in
the amount of $15,000,000.
2. Restated Revolving Credit Note dated August 1, 1996 in
the original principal amount of $15,000,000 signed by Company and
payable to Bank One.
C. Bank One and Company modified the Loan to allow for transfer of
certain assets and make certain other changes in the terms and
conditions of the Loan evidenced, inter alia, by the following
documents:
1. Supplemental Agreement dated as of September 29, 1997 by and
between Company and Bank One.
2. Guarantee Agreement - ShowBiz Nevada, Inc. dated as of
September 29, 1997 made by ShowBiz Nevada, Inc. in favor of Bank
One.
3. Guarantee Agreement - ShowBiz Merchandising, Inc. dated as
of September 29, 1997 made by ShowBiz Merchandising, Inc. in favor
of Bank One.
4. Guarantee Agreement - SPT Properties Company, Inc. dated as
of September 29, 1997 made by SPT Properties Company, Inc. in favor
of Bank One.
5. Guarantee Agreement - ShowBiz Cayman Islands, Inc. dated as
of September 29, 1997 made by ShowBiz Cayman Islands, Inc. in favor
of Bank One.
D. Bank One and Company modified the Loan to extend the maturity
date to June 1, 2000 and make certain other changes in the terms
and conditions of the Loan evidenced, inter alia, by the following
documents:
1. Second Modification and Extension Agreement dated effective
June 14, 1998 by and between Company and Bank One for an aggregate
Loan in the amount of $15,000,000.00.
2. Second Restated Revolving Credit Note dated effective June
14, 1998 in the original principal amount of $15,000,000.00 signed
by Company and payable to Bank One.
E. Bank One and Company modified the Loan to increase its principal
balance to $30,000,000.00 and make certain other changes in the
terms and conditions of the Loan evidenced, inter alia, by the
following documents:
1. Third Modification dated effective December 4, 1998 by and
between Company and Bank One for an aggregate Loan in the amount of
$30,000,000.00.
2. Third Restated Revolving Credit Note dated effective
December 4, 1998 in the original principal amount of $30,000,000.00
signed by Company and payable to Bank One.
Bank One and Company modified the Loan to extend the maturity date
to June 1, 2001, increase its principal balance to $45,000,000.00
and make certain other changes in the terms and conditions of the
Loan evidenced, inter alia, by the following documents:
1. Fourth Modification and Extension Agreement dated effective
July 16, 1999 by and between Company and Bank One for an aggregate
Loan in the amount of $45,000,000.00.
2. Fourth Restated Revolving Credit Note dated effective July
16, 1999 in the original principal amount of $45,000,000.00 signed
by Company and payable to Bank One.
G. Bank One is the owner and holder of the Note, Loan Agreement,
and other Loan Documents.
H. Company has requested that Bank One increase the Revolving
Credit Commitment by extending a supplemental revolving credit
facility to Company in the original principal amount of
$10,000,000.00 to be evidenced by an additional promissory note and
to be subject to the terms of the Loan Documents, and Bank One is
willing to do so on the terms set out in this Agreement.
IT IS AGREED:
1. Definitions. The definition of terms used in the Loan
Agreement and Supplemental Agreement shall have the same meanings
in this Agreement unless otherwise defined. The term "Loan
Documents" in Section 1.1 of the Loan Agreement shall be amended to
include all the documents described above and this Agreement.
2. Principal Balance. Bank One and Company acknowledge that as
of the date hereof the outstanding principal balance of the Note is
FORTY-FIVE MILLION AND NO/100 DOLLARS ($45,000,000.00).
3. Supplemental Credit Facility. Subject to the terms and
conditions set forth in the Loan Agreement and the other
agreements, instruments and documents evidencing, securing,
governing, guaranteeing and/or pertaining to the Loan, and as
modified by this Agreement, Bank One hereby agrees to provide to
Company a Supplemental Revolving Credit Loan (herein referred to as
the "Supplemental Loan"). Subject to the terms and conditions set
forth herein, Bank One agrees to lend to Company, on a revolving
basis from time to time during the period commencing on the date
hereof and continuing through the maturity date of the promissory
note evidencing this Supplemental Loan from time to time, such
amounts as Company may request hereunder; provided, however, the
total principal amount outstanding at any time shall not exceed Ten
Million and No/100 Dollars ($10,000,000.00) (herein referred to as
the "Supplemental Commitment"). Subject to the terms and
conditions hereof, Company may borrow, repay and reborrow
hereunder. The sums advanced under the Supplemental Loan shall be
used for general working capital needs. All advances, whether one
or more, under the Supplemental Loan shall be collectively called
the "Supplemental Loan." The original stated principal amount of
the Supplemental Note shall be included in the definition of
"Revolving Credit Commitment" stated in the Loan Agreement. Except
for the different or unique terms specified and applied to the
Supplemental Loan, Supplemental Note or both by this Agreement, the
Supplemental Loan, Supplemental Note or both shall be subject to
the remainder of the terms of the Loan Documents.
5. Promissory Note. The Supplemental Loan shall be evidenced
by the promissory note (herein referred to as the "Supplemental
Note") duly executed by Company and payable to the order of Bank
One, in form and substance as attached hereto as Exhibit "A".
Interest on the Note shall accrue at the rate set forth therein.
The principal of and interest on the Note shall be due and payable
in accordance with the terms and conditions set forth in the
Supplemental Note and in the Loan Agreement. The interest rate
will not exceed the maximum rate permitted by applicable law.
6. Applicable Margin. The definition of "Applicable Margin" in
Section 1.1 of the Loan Agreement shall be supplemented with an
additional definition solely for calculating the rate of interest
on a Supplemental Loan as follows:
"Applicable Margin" shall mean, solely for calculating the rate
of interest on a Supplemental Loan, at all times during the
applicable periods or portions thereof, (i) unless an Event of
Default has occurred and is continuing, the following listed
percentage rates per annum with respect to Prime Rate Loans and
LIBO Rate Loans for the applicable ratio of (A) Consolidated
Indebtedness to (B) the difference equal to EBITDA minus income and
profit taxes:
Ratio Prime Rate Loans LIBO Rate Loans
----- ------------------ -----------------
Greater than 2.00 0.75% 2.75%
1.50 to 1.99 0.50% 2.25%
1.00 to 1.49 0.25% 1.75%
0.75 to 0.99 0.00% 1.50%
Less than 0.74 (0.25%) 1.25%
and (ii) during the continuance of an Event of Default and prior
to the earlier of Maturity or the expiration of the applicable
Interest Period, if any, (A) 2.50% per annum with respect to Prime
Rate Loans and (B) 5.00% per annum with respect to LIBO Rate Loans.
The ratio of (A) Consolidated Indebtedness to (B) the difference
equal to EBITDA minus income and profit taxes, shall be determined
at the end of each calendar quarter for the immediately preceding
four consecutive calendar quarters.
7. Facility Fee. The Company shall pay a facility fee to Bank
One equal to 0.375% per annum of the average daily, unused amount
of the Supplemental Commitment for the period from the date of this
Agreement to and including the maturity date of the Supplemental
Note, payable quarterly in arrears beginning on March 31, 2000 and
on the end of each calendar quarter thereafter. The facility fee
shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
8. Acknowledgment of Indebtedness. Company acknowledges that
as of the date of this Agreement, it is well and truly indebted to
Bank One pursuant to the terms of the Note and Supplemental Note.
Company hereby promises to pay to Bank One the indebtedness
evidenced by the Note and Supplemental Note in accordance with the
terms thereof, as modified hereby, and shall observe, comply with,
and perform all of the obligations, terms, and conditions under or
in connection with the Note, Supplemental Note and all other Loan
Documents.
9. Ratification of Loan Documents. Except as provided herein,
the terms and provisions of the Note and the other Loan Documents
shall remain unchanged and shall remain in full force and effect.
Any modification herein of the Note, Loan Agreement and the other
Loan Documents shall in no way impair the security of the Loan
Documents for the payment of the Note and the Supplemental Note.
The promissory notes defined herein and in all other Loan Documents
as the "Note" or "Revolving Credit Note(s)" shall hereafter include
the Supplemental Note. The Loan Agreement, the Note and the other
Loan Documents are hereby ratified and confirmed in all respects.
10. Ratification by Guarantors. Each of ShowBiz Nevada, Inc.,
a Nevada corporation, ShowBiz Merchandising, Inc., a Nevada
corporation, SPT Properties Company, Inc., a Nevada corporation,
and ShowBiz Cayman Islands, Inc., a Cayman Islands corporation,
ratifies and confirms its respective Guarantee Agreement dated as
of September 29, 1997, as being binding and continuing, consents to
the terms of this Agreement and acknowledges that the Indebtedness
evidenced by the Supplemental Note is and shall be part of the
Guaranteed Obligations, as defined in its Guarantee.
11. No Waiver. Company acknowledges that the execution of this
Agreement by Bank One is not intended nor shall it be construed as
(i) an actual or implied waiver of any default under the Note or
any other Loan Document or (ii) an actual or implied waiver of any
condition or obligation imposed upon Company pursuant to the Note
or any other Loan Document, except to the extent expressly set
forth herein.
12. Expenses. Contemporaneously with the execution and delivery
thereof, Company shall pay, or cause to be paid, all reasonable
costs and expenses incident to the preparation hereof and the
consummation of the transactions specified herein, including
without limitation fees and expenses of legal counsel to Bank One.
13. Counterparts. This Agreement may be executed in any number
of counterparts with the same effect as if all parties hereto had
signed the same document. All such counterparts shall be construed
together and shall constitute one instrument; but in making proof
hereof it shall only be necessary to produce one such counterpart.
14. Benefit. The terms and provisions hereof shall be binding
upon and inure to the benefit of the parties hereto, their heirs,
representatives, successors and permitted assigns.
15. Release and Waiver of Usury Claim. Company hereby releases
Bank One, its successors and assigns, from all claims, demands,
liabilities and causes of action which Company may be entitled to
assert (although no such claims are known to exist) against Bank
One by reason of Bank One's contracting, charging or receiving for
the use, forbearance or detention of money, interest on the Loan
evidenced by the Note prior to the execution of this Agreement in
excess of that permitted to be charged to Company under applicable
law.
16. Release and Waiver of Other Claims. In consideration of
the terms, conditions and provisions of this Agreement and the
other benefits received by Company hereunder, Company further
hereby releases, relinquishes and forever discharges Bank One, as
well as its parent and subsidiary corporations, predecessors,
successors, assigns, agents, officers, directors, employees,
representatives, attorneys and accountants of and from any and all
claims, demands, actions, causes of action of any and every kind or
character, whether known or unknown, which Company may have against
Bank One and its parent and subsidiary corporations, predecessors,
successors, assigns, agents, officers, directors, employees,
representatives, attorneys or accountants arising out of or with
respect to any and all transactions solely relating to the Note or
any renewal thereof, and/or the Loan Documents, but excluding any
other transactions between the parties, occurring prior to the date
hereof, including any other loss, expense and/or detriment, of any
kind or character, growing out of or in any way connected with or
in any way resulting from the acts, actions or omissions of Bank
One and its parent and subsidiary corporations, predecessors,
successors, assigns, agents, officers, directors, employees,
representatives, attorneys, or accountants, and including any loss,
cost or damage in connection with any breach of fiduciary duty,
breach of any duty of fair dealing, breach of confidence, breach of
funding commitment, undue influence, duress, economic coercion,
conflict of interest, negligence, bad faith, malpractice,
violations of the racketeer influenced and corrupt organizations
act, intentional or negligent infliction of mental duress, tortuous
interference with contractual relations, tortuous interference with
corporate governance or prospective business advantage, breach of
contract, deceptive trade practices, libel, slander or conspiracy.
17. Construction. The parties acknowledge that the parties and
their counsel have reviewed and had the opportunity to revise this
Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
18. Entire Agreement. THIS AGREEMENT, THE NOTE AND THE WRITTEN
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, this Agreement is executed effective as of
the date first above written.
BANK ONE, TEXAS, National Association
By: ---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
CEC ENTERTAINMENT, INC.
By: ---------------------
Name: ▇▇▇▇▇ ▇. Page
Title: Executive Vice President, Chief Financial
Officer and Treasurer
SHOWBIZ NEVADA, INC.
By: ---------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director and President
SHOWBIZ MERCHANDISING, INC.
By: ---------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director and President
SPT PROPERTIES COMPANY, INC.
By: ----------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director and President
SHOWBIZ CAYMAN ISLANDS, INC.
By: -----------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director and President
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ &
&
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ &
This instrument was acknowledged before me on January ----,
2000, by ▇▇▇▇ ▇. ▇▇▇▇, Vice President of BANK ONE, TEXAS, NATIONAL
ASSOCIATION, a national banking association, on behalf of said
national association.
--------------------------
Notary Public, State of Texas
(SEAL)
--------------------------
(Please Print Name of Notary)
My Commission expires:
---------------------
STATE OF TEXAS &
&
COUNTY OF DALLAS &
This instrument was acknowledged before me on January 10, 2000,
by ▇▇▇▇▇ ▇. Page, Executive Vice President, Chief Financial Officer
and Treasurer of CEC ENTERTAINMENT, INC., a Kansas corporation, on
behalf of said corporation.
-----------------------------
Notary Public, State of Texas
(SEAL)
----------------------------
(Please Print Name of Notary)
My Commission expires:
----------------------
STATE OF TEXAS &
&
COUNTY OF DALLAS &
This instrument was acknowledged before me on January 10, 2000,
by ▇▇▇ ▇▇▇▇▇▇▇▇▇, Director and President of SHOWBIZ NEVADA, INC. a
Nevada corporation, on behalf of said corporation.
------------------------------
Notary Public, State of Texas
(SEAL)
------------------------------
(Please Print Name of Notary)
My Commission expires:
-----------------------------
STATE OF TEXAS &
&
COUNTY OF DALLAS &
This instrument was acknowledged before me on January 10, 2000,
by ▇▇▇ ▇▇▇▇▇▇▇▇▇, Director and President of SHOWBIZ MERCHANDISING,
INC. a Nevada corporation, on behalf of said corporation.
-------------------------------
Notary Public, State of Texas
(SEAL)
-------------------------------
(Please Print Name of Notary)
My Commission expires:
-------------------------------
STATE OF TEXAS &
&
COUNTY OF DALLAS &
This instrument was acknowledged before me on January 10, 2000,
by ▇▇▇ ▇▇▇▇▇▇▇▇▇, Director and President of SPT PROPERTIES COMPANY,
INC. a Nevada corporation, on behalf of said corporation.
------------------------------
Notary Public, State of Texas
(SEAL)
------------------------------
(Please Print Name of Notary)
My Commission expires:
----------------------
STATE OF TEXAS &
&
COUNTY OF DALLAS &
This instrument was acknowledged before me on January 10, 2000,
by ▇▇▇ ▇▇▇▇▇▇▇▇▇, Director and President of SHOWBIZ CAYMAN ISLANDS,
INC. a Cayman Islands corporation, on behalf of said corporation.
-----------------------------
Notary Public, State of Texas
(SEAL)
-----------------------------
(Please Print Name of Notary)
My Commission expires:
------------------