10(h)(1)
MODIFICATION AND EXTENSION AGREEMENT
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Date: August 1, 1996
Bank One: BANK ONE, TEXAS, N.A., a national
banking association
Bank One's Address: 0000 Xxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Company: SHOWBIZ PIZZA TIME, INC., a Kansas
corporation
Company's Address: 0000 X. Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
R E C I T A L S:
A. Bank One and Company entered into a loan evidenced 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 $5,000,000.00 signed Borrower and payable to Bank.
B. Bank One is the owner and holder of the Note, Loan Agreement, and
other Loan Documents.
C. Company has requested that Bank One modify the principal amount of
the Note to increase it to $15,000,000, extend its maturity to June
15, 1998 and modify certain other 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 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 this Agreement and the Restated
Revolving Credit Note.
2. Principal Balance. Bank One and Company acknowledge that as
of the date hereof the outstanding principal balance of the Note is Zero
Dollars ($0.00).
3. 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 from the Effective Date to and
including June 15, 1998.
MODIFICATION AND EXTENSION AGREEMENT - Page 1
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4. Revolving Credit Commitment. The definition of "Revolving
Credit Commitment" in Section 1.1 of the Loan Agreement shall be amended
as follows:
"Revolving Credit Commitment" shall mean an amount equal to
Fifteen Million and No/100 Dollars ($15,000,000.00) 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.
5. Restated Note. The Note shall be restated in a form entitled
"Restated Revolving Credit Note" which shall state its original
principal amount as being Fifteen Million and No/100 Dollars
($15,000,000.00) to conform to the amended definition of "Revolving
Credit Commitment" stated in this Agreement, a copy of the form is
attached as Exhibit "A". The terms "Note(s)" or "Revolving Credit
Note(s)" shall include the 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 which shall be
deemed to be superseded by the written instrument evidencing the
Restated Revolving Credit Note dated on even date with this Agreement in
the original principal amount of $15,000,000.
6. Applicable Margin. The definition of "Applicable Margin" in
Section 1.1 of the Loan Agreement shall be amended as follows:
"Applicable Margin" shall mean, 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
EBDITA minus income and profit taxes actually paid in cash.
Ratio Prime Rate Loans LIBO Rate Loans
----- ---------------- ----------------
Greater than 2.00 .50% 3.00%
1.75 to 1.99 .375% 2.75%
1.50 to 1.74 .25% 2.5%
1.25 to 1.49 .125% 2.25%
Less than 1.25 0.00% 2.0%
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 actually paid in cash, shall be
determined at the end of each calendar quarter for the
immediately preceding four consecutive calendar quarters
7. Consolidated Net Worth Amount. The Consolidated Net Worth
requirements in Section 7.2 of the Loan Agreement shall be amended as
follows:
SECTION 7.2. Minimum Net Worth. Suffer or permit at any time
(i) prior to the last day of the fiscal year ending on or
about December 31, 1995, Consolidated Net Worth to be less
than $115,000,000 and (ii) thereafter Consolidated Net Worth
to be less than the sum of (A) $115,000,000 plus (B) 75% of
Consolidated Net Income aggregated from the inception of each
MODIFICATION AND EXTENSION AGREEMENT - Page 2
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fiscal year to the date of the calculation for each fiscal
year ending after December 31, 1995 (but without any deduction
for any consolidated net loss in any such fiscal year) plus
(C) 100 % of the net cash proceeds of all sales of equity
securities by the Company after the Effective Date.
8. Consolidated Debt Service Ratio Calculation. Section 1.1 of
the Loan Agreement shall be amended by adding the following definitions:
"Consolidated Debt Service Ratio"' shall mean, for any period,
the ratio of (i) the difference of (A) EBITDA for such period
minus (B) income and profits taxes actually paid in cash minus
(C) Maintenance Capital Expenditures for such period, to (ii)
the sum of (A) CMLTD plus (B) Consolidated Interest Expense
for such period.
"CMLTD" shall mean, for any period, all current maturities of
long term Indebtedness as determined in accordance with GAAP,
provided however, that for purposes of this calculation (i)
the outstanding principal balance of the Note as of the date
of the calculation shall be deemed to be amortized in equal
quarterly installments over a period of three years, and (ii)
CMLTD shall only include 20% of any final "balloon" or
extraordinary payment on Indebtedness which otherwise would
have been included in total CMLTD.
"Maintenance Capital Expenditures" shall mean with respect to
Company, an amount equal to $20,000 for each calendar year for
each "Xxxxx X. Cheese" restaurant which is owned by Company
but excluding any "Xxxxx X. Cheese" restaurants operated by a
franchisee.
9. Consolidated Debt Service Ratio. Article VII of the Loan
Agreement shall be amended by adding the following financial covenant:
SECTION 7.4. Consolidated Debt Service Ratio. Suffer or
permit the Consolidated Debt Service Ratio as of the last day
of any quarterly accounting period (commencing with such
accounting period ending on or about September 30, 1996), to
be less than 1.50 to 1 for the four consecutive quarterly
accounting periods then ended. This covenant shall terminate
on April 1, 1998.
Section 6.2(a) of the Loan Agreement shall be amended to include a
reference to the foregoing Section 7.4 and the calculation of the
Consolidated Debt Service Ratio shall become a part of the reporting
requirements to be furnished in accordance with such Section 6.2(a).
10. 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.
11. 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
MODIFICATION AND EXTENSION AGREEMENT - Page 3
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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.
12. 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.
13. Expenses. Contemporaneously with the execution and delivery
hereof, Company shall pay, or cause to be paid, all 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.
14. 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.
15. 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.
16. 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 loans evidenced by
the Note prior to the execution of this Agreement in excess of that
permitted to be charged to Company under applicable law.
17. 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 relating to the Note
or any renewal thereof, and/or the Loan Documents, 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, tortious interference with contractual relations, tortious
interference with corporate governance or prospective business
advantage, breach of contract, deceptive trade practices, libel, slander
or conspiracy.
18. 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
MODIFICATION AND EXTENSION AGREEMENT - Page 4
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are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any amendments or exhibits
hereto.
19. 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: /s/ Xxxx X. Xxxx
-------------------------
Name: Xxxx X. Xxxx
Title: Vice President
SHOWBIZ PIZZA TIME, INC., INC.
By: /s/ Xxxxx X. Page
Name: Xxxxx X. Page
Title: Executive Vice President,
Chief Financial Officer and Treasurer
STATE OF TEXAS &
&
COUNTY OF DALLAS &
This instrument was acknowledged before me on August 1, 1996, by
Xxxx X. Xxxx, Vice President of BANK ONE, TEXAS, NATIONAL ASSOCIATION,
a national banking association, on behalf of said national association.
/s/ Xxxxx Xxxx
----------------------------
Notary Public, Sate of Texas
Xxxxx Xxxx
(Please Print Name of Notary)
My Commission expires: 7-09-00
MODIFICATION AND EXTENSION AGREEMENT - Page 0
XXXXX XX XXXXX &
&
XXXXXX XX XXXXXX &
This instrument was acknowledged before me on August 1, 1996, by
Xxxxx X. Page, Executive Vice President, Chief Financial Officer and
Treasurer of SHOWBIZ PIZZA TIME, INC., a Kansas corporation, on behalf
of said corporation.
/s/ Xxxxx Xxxx
-----------------------------
Notary Public, Sate of Texas
Xxxxx Xxxx
(Please Print Name of Notary)
My Commission expires: 7-09-00
MODIFICATION AND EXTENSION AGREEMENT - Page 6
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EXHIBIT "A"
RESTATED REVOLVING CREDIT NOTE
$15,000,000
Dallas, Texas
August 1, 1996
FOR VALUE RECEIVED, the undersigned, SHOWBIZ PIZZA TIME, INC., a
Kansas corporation ("Company"), hereby unconditionally promises to pay
to the order of BANK ONE, TEXAS, N.A. ("Bank One") at the office of Bank
One or any successor, currently located at 0000 Xxxx Xxxxxx, Xxxxxx,
Xxxxx 00000, on June 15, 1998 (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) FIFTEEN MILLION AND NO/100 DOLLARS
($15,000,000.00), 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.
MODIFICATION AND EXTENSION AGREEMENT - Page 7
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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 Borrower'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 TEX. REV. CIV. STAT. XXX.
Article 5069-1.04, as amended, 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 such Article 5069-1.04, as amended, 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
MODIFICATION AND EXTENSION AGREEMENT - Page 8
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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 THE 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
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
Modification and Extension Agreement.
IN WITNESS WHEREOF, the Company has executed and delivered this
Note on the date first written above.
SHOWBIZ PIZZA TIME, INC.
By:---------------------------
Name:Xxxxx X. Page
Title: Executive Vice President,
Chief Financial Officer and Treasurer
MODIFICATION AND EXTENSION AGREEMENT - Page 9
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