Exhibit 10 (n)(2)
THIRD RESTATED REVOLVING CREDIT NOTE
$30,000,000.00 Dallas, Texas - December 4, 1998
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, N.A.
("Bank One") at the office of Bank One or any successor,
currently located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx
00000, on June 1, 2000 (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) THIRTY MILLION AND NO/100 DOLLARS
($30,000,000.00), 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 Texas Finance Code, as
supplemented by 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 such Texas Finance Code, as
supplemented by 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 Third Modification 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 Third
Modification Agreement.
IN WITNESS WHEREOF, the Company has executed
and delivered this Note as of the date first written
above.
CEC ENTERTAINMENT, INC.
By:
Name: Xxxxx X. Xxxx
Title: Executive Vice President, Chief
Financial Officer and Treasurer
STATE OF TEXAS &
&
COUNTY OF DALLAS &
This instrument was acknowledged before me on
December 10, 1998, by Xxxxx X. Xxxx, 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:
