Exhibit 10(a)
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT ("Agreement") is made effective as
of the 28th day of February, 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 (collectively, "Lenders")
WITNESSETH:
WHEREAS, Borrower on December 3, 2002 entered into that certain Credit
Agreement ("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 modify one of the financial covenants
to the Credit Agreement and to amend all Loan Documents to account for the name
change by Borrower;
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. Modification to Credit Agreement.
The Credit Agreement is hereby amended to modify Section 7.06(d) in its
entirety to read as follows:
(d) CEC Entertainment may declare or pay cash dividends to its stockholders
and purchase, redeem or otherwise acquire shares of its capital stock (including
its preferred stock) or warrants, rights or options to acquire any such shares
for cash solely out of 50% of net income of CEC Entertainment and its
Subsidiaries arising in the preceding 12-month period and computed on a
cumulative consolidated basis with other such transactions by CEC Entertainment
during that period; provided, however, for purposes of this calculation any
purchase, redemption or acquisition shall be utilized in the calculation only if
it occurs on or after December 3, 2002; and provided further that immediately
after giving effect to all such proposed action, no Default would exist; and ".
2. Modification of Loan Documents. Each of the Loan Documents is hereby
modified to acknowledge the name change by Borrower. Therefore, each reference
in each of the Loan Documents to "ShowBiz Merchandising, L.P." is hereby
modified to read, "CEC Entertainment Concepts, L.P. (formerly known as ShowBiz
Merchandising, L.P.)".
3. Conditions Precedent to the Effectiveness of this Agreement. This
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;
(b) no Material Adverse Effect shall exist or shall have occurred since
December 3, 2002.
4. 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.
5. 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
xxxx for legal services rendered).
6. Governing Law. THE TERMS AND PROVISION HEREOF SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF TILE STATE OF TEXAS, EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED HEREIN.
7. Time. Time is of the essence in the performance of the covenants
contained herein and in the Loan Documents.
8. 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.
9. Headines. 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.
10. 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.
11. 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.
EXECUTED as of the date first above written.
IN WITNESS WHEREOF, the parties hereto have executed this First 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/ Xxxxxx Xxxxxx
--------------------------
Xxxxxx Xxxxxx
Executive Vice President &
Chief Financial Officer
THE ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
a national banking association,
as the Administrative Agent
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Xxxxxxx X. Xxxx
Vice President
THE LENDERS: BANK OF AMERICA, N.A.,
a national banking association
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxx
Vice President
BANK ONE, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx,
Vice President
US BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx,
Vice President
FLEET NATIONAL BANK
By: /s/ J. Xxxxxxxx Xxxx
--------------------------
J. Xxxxxxxx Xxxx,
Managing Director
THE FROST NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Xxxxx X. Xxxxxx,
Senior Vice President
BANK HAPOALIM
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx,
VP - Senior Lending Officer
By: /s/ Xxxx Xxx
--------------------------
Xxxx Xxx,
First Vice President & Branch 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/ Xxxxxxxx Xxxxx
--------------------------
Xxxxxxxx Xxxxx
Vice President
CEC ENTERTAINMENT, INC.,
a Kansas corporation
By: /s/ Xxxxxx Xxxxxx
--------------------------
Xxxxxx Xxxxxx
Executive Vice President &
Chief Financial Officer
CEC ENTERTAINMENT HOLDINGS, LLC,
a Nevada limited liability company
By: /s/ Xxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxx,
President
TJH RESTAURANT GROUP, INC.,
a Texas corporation
By: /s/ Xxxxxxxx Xxxxx
--------------------------
Xxxxxxxx Xxxxx,
Vice President