Exhibit 10(b)(1)
FOURTH MODIFICATION AND EXTENSION AGREEMENT
Date: Effective July 16, 1999
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.
F. Bank One is the owner and holder of the Note, Loan Agreement,
and other Loan Documents.
G. Company has requested that Bank One (i) increase the principal
amount of the Note to $45,000,000.00, and (ii) extend the maturity
date to June 1, 2001, 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 Five Million Seventy-Three Thousand Six Hundred and No/100
Dollars ($5,073,600.00).
3. Revolving Credit Commitment. The definition of
"Revolving Credit Commitment" in Section 1.1. Defined Terms of the
Loan Agreement shall be amended as follows:
"Revolving Credit Commitment" shall mean an amount equal to
Forty-Five Million and No/100 Dollars ($45,000,000.00) less the
Unsecured LC Exposure Amount, as the same may be reduced from time
to time or terminated pursuant to Sections 2.4, 2.11 or 9.1 hereof.
4. Extension of Maturity of Note and Loan Documents. The
definition of Initial Term in Section 1.1 of the Loan Agreement
shall be amended as follows:
"Initial Term" shall mean the period of the Effective Date to
and including June 1, 2001.
5. Restated Note. The Note shall be restated in a form
entitled "Fourth Restated Revolving Credit Note" which shall state
its original principal amount as being Forty-Five Million and
No/100 Dollars ($45,000,000.00) to conform to the amended
definition of "Revolving Credit Commitment" stated in this
Agreement, a copy of the form of Note is attached as Exhibit "A".
The terms "Note(s)" or "Revolving Credit Note(s)" shall include the
Fourth Restated Revolving Credit Note for all purposes and in all
Loan Documents. Bank One shall retain the written instrument
evidencing the original Revolving Credit Note dated June 27, 1995
in the original principal amount of $5,000,000, the original
Restated Revolving Credit Note dated August 1, 1996 in the original
principal amount of $15,000,000, the original Second Restated
Revolving Credit Note dated effective June 14, 1988 in the original
principal amount of $15,000,000, and the original Third Restated
Revolving Credit Note dated December 4, 1998 in the original
principal amount of $30,000,000, all of which shall be deemed to be
superseded by the written instrument evidencing the Fourth Restated
Revolving Credit Note dated on even date with this Agreement in the
original principal amount of $45,000,000. Each such superseded
note shall be marked "SUPERSEDED BY THE WRITTEN INSTRUMENT
EVIDENCING THE FOURTH RESTATED REVOLVING CREDIT NOTE DATED
EFFECTIVE JULY 16, 1999" and copies of such notes will be delivered
to Company contemporaneously with the execution of this Agreement.
6. 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, as modified
hereby. Company hereby promises to pay to Bank One the
indebtedness evidenced by the 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 and all other Loan Documents.
7. 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. The promissory notes
defined herein and in all other Loan Documents as the "Note" or
"Revolving Credit Note(s)" shall hereafter mean the Note as
modified by this Agreement. The Loan Agreement, the Note and the
other Loan Documents as modified and amended hereby are hereby
ratified and confirmed in all respects.
8. 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 Agreements dated as
of September 29, 1997, as being binding and continuing and consent
to the terms of this Agreement.
9. 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.
10. Expenses. Contemporaneously with the execution and
delivery hereof, 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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 July ----, 1999,
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 July ----, 1999,
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 July ----, 1999,
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 July ____, 1999,
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 July ----, 1999,
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 July ----, 1999,
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:
----------------------------
FOURTH RESTATED REVOLVING CREDIT NOTE
$45,000,000.00 Dallas, Texas July 16, 1999
FOR VALUE RECEIVED, the undersigned, CEC ENTERTAINMENT, INC.
(f/k/a SHOWBIZ PIZZA TIME, INC.), a Kansas corporation ("Company"),
hereby unconditionally promises to pay to the order of BANK ONE,
TEXAS, National Association ("Bank One") at the office of Bank One
or any successor, currently located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, on June 1, 2001 (or on any annual
anniversary thereof agreed to in writing by Bank One and the
Company), in lawful money of the United States of America and
immediately available funds, an amount equal to the lesser of (a)
FORTY-FIVE MILLION AND NO/100 DOLLARS ($45,000,000.00), or (b) the
aggregate unpaid principal amount of all Revolving Credit Loans
made by Bank One to the Company pursuant to Section 2.1 of the Loan
Agreement, dated as of June 27, 1995, between Bank One and the
Company (as amended, modified or supplemented from time to time in
accordance with its terms, the "Loan Agreement").
The Company further promises to pay interest (computed on the
basis of a 365-day year for the actual days elapsed) in like money
on the unpaid principal balance of this Note from time to time
outstanding at the annual rates provided in the Loan Agreement.
Interest shall be payable at the times and in the manner provided
in the Loan Agreement.
All Revolving Credit Loans made by Bank One pursuant to Section
2.1 of the Loan Agreement and all payments of the principal thereof
shall be endorsed by the holder of this Note on the schedule
annexed hereto (including any additional pages such holder may add
to such schedule), which endorsement shall constitute prima facie
evidence of the accuracy of the information so endorsed; provided,
however, that the failure of the holder of this Note to insert any
date or amount or other information on such schedule shall not in
any manner affect the obligation of the Company to repay any
Revolving Credit Loans in accordance with the terms of the Loan
Agreement.
On and after the stated or any accelerated maturity hereof, this
Note shall bear interest until paid in full (whether before or
after the occurrence of any Event of Default described in Sections
9.1(g) and 9.1(h) of the Loan Agreement) at a rate of 2.5% per
annum in excess of the Prime Rate, payable on demand, but in no
event in excess of the maximum rate of interest permitted under
applicable law. Such interest rate shall change when and as the
Prime Rate changes.
This Note is a Revolving Credit Note referred to in the Loan
Agreement, is entitled to the benefits thereof and is subject to
optional and mandatory prepayment, in whole or in part, as provided
therein. Reference is herein made to the Loan Agreement for the
rights of the holder to accelerate the unpaid balance hereof prior
to maturity.
The Company hereby waives diligence, demand, presentment,
protest and notice of any kind, release, surrender or substitution
of security, or forbearance or other indulgence, without notice.
This Note and all of the other Loan Documents are intended to be
performed in accordance with, and only to the extent permitted by,
all applicable usury laws. If any provision hereof or of any of
the other Loan Documents or the application thereof to any person
or circumstance shall, for any reason and to any extent, be invalid
or unenforceable, neither the application of such provision to any
other person or circumstance nor the remainder of the instrument in
which such provision is contained shall be affected thereby and
shall be enforced to the greatest extent permitted by law. It is
expressly stipulated and agreed to be the intent of Bank One at all
times to comply with the usury and other applicable laws now or
hereafter governing the interest payable on the Indebtedness
evidenced by this Note. If the applicable law is ever revised,
repealed or interpreted so as to render usurious any amount called
for under this Note or any of the other Loan Documents, or
contracted for, charged, taken, reserved or received with respect
to the Indebtedness evidenced by this Note, or if Bank One's
exercise of the option to accelerate the maturity of this Note, or
if any prepayment by the Company results in the Company's having
paid any interest in excess of that permitted by law, then it is
the express intent of the Company and Bank One that all excess
amounts theretofore collected by Bank One be credited on the
principal balance of this Note (or, if this Note and all other
Indebtedness arising under or pursuant to the other Loan Documents
have been paid in full, refunded to the Company), and the
provisions of this Note and the other Loan Documents immediately be
deemed reformed and the amounts thereafter collectable hereunder
and thereunder reduced, without the necessity of the execution of
any new document, so as to comply with the then applicable law, but
so as to permit the recovery of the fullest amount otherwise called
for hereunder or thereunder. All sums paid, or agreed to be paid,
by the Company for the use, forbearance, detention, taking,
charging, receiving or reserving of the Indebtedness of the Company
to Bank One under this Note or arising under of pursuant to the
other Loan Documents shall, to the maximum extent permitted by
applicable law, be amortized, prorated, allocated and spread
throughout the full term of such Indebtedness until payment in full
so that the rate or amount of interest on account of such
Indebtedness does not exceed the usury ceiling from time to time in
effect and applicable to such Indebtedness for so long as such
Indebtedness is outstanding. To the extent federal law permits
Bank One to contract for, charge, or receive a greater amount of
interest, Bank One will rely upon federal law instead of the Texas
Finance Code, as supplemented by the Texas Credit Title, for the
purpose of determining the maximum rate or amount. Additionally,
to the maximum extent permitted by applicable law now or hereafter
in effect, Bank One may, at its option and from time to time,
implement any other method of computing the maximum rate under the
Texas Finance Code, as supplemented by the Texas Credit Title, or
under other applicable law by giving notice, if required, to the
Company as provided by applicable law now or hereafter in effect.
Notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents, it is not the intention of Bank One to
accelerate the maturity of any interest that has accrued at the
time of such acceleration or to collect unearned interest at the
time of such acceleration.
Capitalized terms used herein and not otherwise defined shall
have the meaning ascribed to them in the Loan Agreement.
This Note may not be changed, modified, or terminated orally,
but only by an agreement in writing signed by the party to be
charged.
IN THE EVENT OF ANY LITIGATION WITH RESPECT TO THIS REVOLVING
CREDIT NOTE, COMPANY WAIVES (TO THE EXTENT PERMITTED BY LAW) THE
RIGHT TO A TRIAL BY JURY, ALL RIGHTS OF SETOFF AND RIGHTS TO
INTERPOSE COUNTERCLAIMS AND CROSS-CLAIMS (UNLESS SUCH SETOFF,
COUNTERCLAIM OR CROSS-CLAIM COULD NOT, BY REASON OF ANY APPLICABLE
FEDERAL OR STATE PROCEDURAL LAWS, BE INTERPOSED, PLEADED OR ALLEGED
IN ANY OTHER ACTION) AND THE DEFENSES OF FORUM NON CONVENIENS AND
IMPROPER VENUE. COMPANY HEREBY IRREVOCABLY CONSENTS TO THE NON-
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND OF
ANY FEDERAL COURT LOCATED IN DALLAS, TEXAS, IN CONNECTION WITH ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS REVOLVING
CREDIT NOTE. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW AND SHALL BE BINDING UPON THE
SUCCESSORS AND ASSIGNS OF COMPANY AND INURE TO THE BENEFIT OF BANK
ONE AND ITS SUCCESSORS AND ASSIGNS.
If any term or provision of this Revolving Credit Note shall be
held invalid, illegal or unenforceable, the validity of all other
terms and provisions herein shall in no way be affected thereby.
This Note is restated in accordance with the terms of that
certain Fourth Modification and Extension Agreement dated on even
date herewith by and between Company and Bank One to conform the
terms of this Note to the amended definition of "Revolving Credit
Commitment" contained in the Fourth Modification and Extension
Agreement.
IN WITNESS WHEREOF, the Company has executed and delivered this
Note as of the date first written above.
CEC ENTERTAINMENT, INC.
By: ----------------------------------------
Name: ▇▇▇▇▇ ▇. Page
Title: Executive Vice President, Chief Financial
Officer and Treasurer
STATE OF TEXAS &
&
COUNTY OF DALLAS &
This instrument was acknowledged before me on July ____, 1999,
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:
----------------------------------