EHIBIT 10(c)(4)
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT ("Agreement") is made effective as
of the 27th day of August, 2003, by and between BANK OF AMERICA, N.A., as
Administrative Agent ("Agent") and CEC ENTERTAINMENT CONCEPTS, L.P., a Texas
limited partnership (formerly known as SHOWBIZ MERCHANDISING, L.P.)
("Borrower"), CEC ENTERTAINMENT, INC., CEC ENTERTAINMENT HOLDINGS, LLC, SPT
DISTRIBUTION COMPANY, INC., and TJH RESTAURANT GROUP, INC. ("Guarantors") and
the following lenders, Bank of America, N.A., Bank One, N.A., as a Lender and
Syndication Agent, US Bank National Association, as a Lender and as
Co-Documentation Agent, Fleet National Bank, as Lender and Co-Documentation
Agent, The Frost National Bank, Bank Hapoalim B.M. (collectively, "Lenders").
W I T N E S S E T H :
WHEREAS, Borrower on December 3, 2002 entered into that certain Credit
Agreement (together with all amendments, "Credit Agreement") with Agent and
Lenders governing a $100,000,000 revolving credit loan from Lenders to Borrower
(the "Loan");
WHEREAS, to evidence the Loan, Borrower executed certain Promissory Notes
(collectively the "Note") in the aggregate stated amount of $100,000,000 dated
of even date with the Credit Agreement and secured guarantees to support the
Loan from the Guarantors. All documents representing, evidencing or securing the
Loan are collectively referred to as the "Loan Documents"; and
WHEREAS, the parties hereto desire to add a new definition and modify two
of the negative covenants to the Credit Agreement and increase the amount of the
Aggregate Commitments;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties to this Agreement hereby agree as follows:
1. Modifications to Credit Agreement.
The Credit Agreement is hereby amended as follows:
(a) a new definition of "Margin Capital Stock" is added to Section
1.01 after the definition of "Loan Parties":
"Margin Capital Stock" means capital stock issued by CEC
Entertainment that constitutes "margin stock" within the meaning
of such term under Regulation U, 12 CFR Section 221.1 et seq., as
now or from time to time hereinafter in effect."
(b) Section 7.01 of the Credit Agreement is amended by:
(i) removing the word "and" at the end of subsection (k) and
replacing the period at the end of subsection (l) with ";
and".
(ii) adding new subsection (m):
"(m) Liens on Margin Capital Stock that is held by CEC
Entertainment as treasury stock."
(c) Section 7.05 of the Credit Agreement is amended by:
(i) removing the word "and" from the end of subsection (e) and
adding the word "and" at the end of subsection (f).
(ii) adding new subsection (g):
"(g) Dispositions of Margin Capital Stock that is held as
treasury stock by CEC Entertainment;"
(d) Schedule 2.01 is deleted in its entirety and replaced by new
Schedule 2.01, attached hereto.
2. Conditions Precedent to the Effectiveness of this Agreement. The
effectiveness of this Agreement is conditioned upon the achievement by Borrower
of the following conditions precedent:
(a) evidence that all corporate and partnership proceedings for the
Borrower and Guarantors taken in connection with the transaction contemplated by
this Agreement shall be reasonably satisfactory in form and substance to the
Agent and its counsel; and the Lenders shall have received copies of all
documents or other evidence which the Lenders or their counsel may reasonably
request in connection therewith; and
(b) the Borrower shall deliver to the Agent a certificate of each Loan
Party dated of even date herewith (with sufficient copies for each Lender)
signed by a Responsible Officer of such Loan Party certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to the increase
contemplated by new Schedule 2.01;
(c) payment of all modification or increase fees assessed by any Lender;
(d) no Material Adverse Effect shall exist or shall have occurred since
December 3, 2002.
3. Acknowledgment by Borrower and Guarantors. Except as otherwise specified
herein, the terms and provisions of the Loan Documents are ratified and
confirmed and shall remain in full force and effect, enforceable in accordance
with their terms. Borrower and Guarantors hereby acknowledge, agree and
represent that (i) Borrower and Guarantors are indebted to Lenders pursuant to
the terms of the Notes and Loan Documents as modified hereby; (ii)
contemporaneously with the effectiveness of this Agreement, the representations
and warranties contained in the Loan Documents are true and correct
representations and warranties of Borrower and each Guarantor, as applicable and
(iii) Borrower and each Guarantor have no set-offs, counterclaims, defenses or
other causes of action against Agent or Lenders arising out of the Loan, this
Agreement, the Loan Documents or otherwise and to the extent any such set-offs,
counterclaims, defenses or other causes of action may exist, whether known or
unknown, such items are hereby waived by Borrower and each Guarantor.
4. Costs and Expenses. Contemporaneously with the execution and delivery
hereof, Borrower shall pay, or cause to be paid, all costs and expenses incident
to the preparation hereof and the consummation of the transaction contemplated
hereby, including, but not limited to, reasonable fees and expenses of legal
counsel to Agent (which fees and expenses, as to legal counsel of Agent, shall
be paid directly to legal counsel of Agent immediately upon presentation of a
▇▇▇▇ for legal services rendered).
5. Governing Law. THE TERMS AND PROVISION HEREOF SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN.
6. Time. Time is of the essence in the performance of the covenants
contained herein and in the Loan Documents.
7. Binding Agreement. This Agreement shall be binding upon the heirs,
executors, administrators, personal representatives, successors and assigns of
the parties hereto; provided, however, the foregoing shall not be deemed or
construed to (i) permit, sanction, authorize or condone the assignment of all or
any part of any interest in and to Borrower or any Guarantor except as expressly
authorized in the Loan Documents, or (ii) confer any right, title, benefit,
cause of action or remedy upon any person or entity not a party hereto, which
such party would not or did not otherwise possess.
8. Headings. The section headings hereof are inserted for convenience of
reference only and shall in no way alter, amend, define or be used in the
construction or interpretation of the text of such section.
9. Construction. Whenever the context hereof so required, reference to the
singular shall include the plural and likewise, the plural shall include the
singular; words denoting gender shall be construed to mean the masculine,
feminine or neuter, as appropriate; and specific enumeration shall not exclude
the general but shall be construed as cumulative of the general recitation.
Terms not defined herein shall have the meaning given to such terms in the
Credit Agreement.
10. Counterparts. To facilitate execution, this Agreement may be executed
in as any counterparts as may be convenient or required. It shall not be
necessary that the signature of, or on behalf of, each party or that the
signature of all persons required to bind any party appear on each counterpart.
All counterparts shall collectively constitute a single counterpart containing
the respective signatures of, or on behalf of, each of the parties hereto. Any
signature page to any counterpart may be detached from such counterpart without
impairing the legal effect of the signatures thereon and thereafter attached to
another counterpart identical thereto except having attached to it additional
signature pages. Signatures hereto transmitted by facsimile or other electronic
medium shall be effective as originals.
THIS AGREEMENT AND THE LOAN DOCUMENTS COLLECTIVELY 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.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
to Credit Agreement effective as of the date first set forth above.
THE BORROWER: CEC Entertainment Concepts, L.P.,
a Texas limited partnership
By: CEC Entertainment, Inc.,
a Kansas corporation,
its general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
THE ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
a national banking association,
as the Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
THE LENDERS: BANK OF AMERICA, N.A.,
a national banking association
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
BANK ONE, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President
US BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President
FLEET NATIONAL BANK
By: /s/ J. ▇▇▇▇▇▇▇▇ ▇▇▇▇
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J. ▇▇▇▇▇▇▇▇ ▇▇▇▇,
Managing Director
THE FROST NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Senior Vice President
BANK HAPOALIM B.M.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President &
Corporate Manager
The terms, conditions, and obligations of
each of the undersigned under this Agreement
and each of the Loan Documents are hereby
acknowledged and agreed to:
GUARANTORS: SPT DISTRIBUTION COMPANY, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
CEC ENTERTAINMENT, INC.,
a Kansas corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
CEC ENTERTAINMENT HOLDINGS, LLC,
a Nevada limited liability company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇,
President
TJH RESTAURANT GROUP, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Vice President
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Lender Commitment Pro Rata Share
------ ---------- --------------
Bank of America, N.A. $ 35,000,000.00 26.415094340%
Bank One, NA $ 30,000,000.00 22.641509434%
US Bank National Association $ 20,000,000.00 15.094339623%
Fleet National Bank $ 25,000,000.00 18.867924528%
The Frost National Bank $ 12,500,000.00 9.433962264%
Bank Hapoalim $ 10,000,000.00 7.547169811%
Total $132,500,000.00 100.000000000%