Concept Unification Fund Promissory Note - ShowBiz Pizza Time Inc. and International Association of ShowBiz Pizza Time Restaurants Inc.
CONCEPT UNIFICATION FUND
PROMISSORY NOTE
Dated as of
$500,000.00 Irving, Texas November 17, 1994
FOR VALUE RECEIVED, the undersigned INTERNATIONAL ASSOCIATION
OF SHOWBIZ PIZZA TIME RESTAURANTS, INC. ("Borrower"), a Texas
corporation, promises to pay to SHOWBIZ PIZZA TIME, INC.
("Lender"), a Kansas corporation, (hereinafter collectively
referred to as "Parties"), the principal sum of FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($500,000.00), or so much thereof as
may from time to time be advanced, together with interest accrued
on the unpaid principal balance hereof as set forth below.
1. Interest Rate. The unpaid principal amount hereof from time
to time outstanding from the date hereof until maturity shall bear
interest at a fluctuating rate per annum equal to the Prime Rate
plus 0.5% (as herein defined), changing automatically, without
notice to the Borrower, effective as of the effective date of any
change in the Prime Rate. Interest shall be calculated at the end
of each of Lender's monthly accounting periods (which will not
correspond with calendar months due to Lender's 52 week fiscal
year) based on the average between the principal amounts
outstanding and unpaid at the beginning of the monthly accounting
period and at the end of such period, but shall be charged and
collected based on the actual number of days elapsed. The term
"Prime Rate" as used herein means the higher of (a) the annual rate
of interest announced from time to time by the First National Bank
of Boston at its head office in Boston, Massachusetts as its "base
rate" and (b) the overnight federal funds effective rate as
published by the Board of Governors of the Federal Reserve System
as in effect from time to time plus one half of one percent (1/2%).
2. Payment of Principal and Interest. Each payment by Borrower
to Lender on this Note shall be applied first to fees and/or costs,
if any, pursuant to Section 8 hereof and then applied to any
accrued interest, and then any remaining portion of the payment
after such applications shall be applied to reduction of
outstanding principal balance of this Note.
3. Revolving Note. This Note is a "revolving line of credit"
note. Principal advances may be made, from time to time, up to the
principal amount of this Note, and principal payments may, from
time to time, be made by Borrower to reduce the principal balance
owing pursuant to this Note. This Note may be prepaid in whole or
in part at any time without penalty or premium. In no event shall
any principal advance be made after December 31, 1995, and all
amounts outstanding will be due and payable at that time.
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4. Line of Credit Agreement. This Note is issued pursuant to,
is entitled to the benefit of, and is subject to the provisions of
the Concept Unification Fund Line of Credit Agreement (the
"Agreement") between Borrower and Lender dated the same date as
this Note.
5. Events of Default. The outstanding principal and accrued
interest hereon shall mature and become automatically due and
payable, without notice or demand, upon the occurrence and during
the continuance without cure of any of the following events of
default:
(a) The failure by Borrower to make a payment of any
principal or interest on the Note within ten (10) days after
the same becomes due and payable;
(b) The failure by Borrower to perform any of its
obligations, except the payment of principal and interest,
arising under this Note, the Agreement or any other agreement
between Borrower and Lender within five (5) days after receipt
of written notice of such failure; or
(c) The filing by or against the Borrower of a voluntary or
involuntary proceeding seeking liquidation, reorganization or
other relief with respect to Borrower or its debts under any
bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official for Borrower
or any substantial part of its property and, in the case of
any involuntary proceeding not consented to by Borrower, such
proceeding is not dismissed within sixty (60) days of its
filing.
6. Remedies. If Borrower is in default under this Note: (a) the
outstanding principal and accrued interest under the Note shall
mature and become automatically due and payable, without notice or
demand; (b) Lender may terminate its commitment to advance monies
under this Note; and (c) Lender may exercise any other remedies
available to it at law or in equity.
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7. Waiver. Borrower, sureties, endorsers, guarantors and any
other party now or hereafter liable for the payment of this Note in
whole or in part, hereby severally (a) waive presentment for
payment, notice of nonpayment, protest, notice of protest, notice
of intent to accelerate, notice of acceleration and all other
notices, filing of suit and diligence in collecting this Note or
enforcing any other security with respect to same, (b) agree to any
substitution, subordination, exchange or release of any such
security or the release of any parties primarily or secondarily
liable hereon, (c) agree that the Lender shall not be required
first to institute suit or exhaust its remedies hereon against the
Borrower, or other any party liable or to become liable hereon or
to enforce its rights against any or all of them or any security
with respect to same, and (d) consent to any extension or
postponement of time of payment of this Note and to any other
indulgence with respect hereto without notice hereof to any of
them.
8. Attorneys' Fees. If this Note is not paid at maturity and
is placed in the hands of an attorney for collection, or if it is
collected through a bankruptcy or any other court after maturity,
then the Lender shall be entitled to reasonable attorneys' fees and
court costs for collection.
9. Limitation of Agreements. All agreements between the
Borrower and the Lender, whether now existing or hereafter arising
and whether written or oral, are hereby expressly limited so that
in no contingency or event, whether by reason of demand or
otherwise, shall the amount paid, or agreed to be paid to the
Lender for the use, forbearance, or detention of the money to be
loaned under this Note or otherwise or for the payment or
performance of any covenant or obligation contained herein or in
any other document evidencing security or pertaining to the loan
evidenced hereby, exceed the maximum amount permissible under
applicable law, as now existing or as hereafter amended. If from
any circumstances whatsoever fulfillment of any provision hereof or
in any of such other documents at the time performance of such
provision shall be due, shall involve transcending the limit of
validity prescribed by law, then ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if
from any such circumstances the Lender shall ever receive interest
(or anything which might be deemed interest under applicable law)
which would exceed the highest rate of interest allowed by
applicable law, such amount which would be excessive interest shall
be applied to the reduction of the principal due hereunder and not
to the payment of interest, or if such excessive interest exceeds
the unpaid balance of principal of this Note, such excess shall be
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refunded to the Borrower. All sums paid or agreed to be paid to
the Lender for the use, forbearance or detention of the
indebtedness of the Borrower to the Lender shall, to the 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 actual rate of interest on account of such
indebtedness is uniform, or does not exceed the maximum rate
permitted by applicable law as now existing or hereafter amended,
throughout the term thereof. The terms and provisions of this
paragraph shall control and supersede every other provision of all
agreements between the Lender and the Borrower.
10. Records. Borrower hereby appoints Lender as the authorized
agent of Borrower with full authority to record on the Grid
attached hereto as Exhibit A, and incorporated herein by reference
for all purposes, the dates of each transaction, amounts of all
principal advances, as well as principal and interest payments,
made under this Note, and balance due on the Note. This Grid (and
all notations made thereto) shall be conclusive evidence of the
actual amounts of principal and accrued interest advanced and/or
outstanding under this Note.
11. Miscellaneous.
(a) No failure or delay by Lender in exercising any right,
power or privilege under this Note or the Agreement shall
operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any further exercise thereof or the
exercise of any other right, power or privilege.
(b) The captions used in this Note are for convenience only
and shall not be deemed to amplify, modify or limit any
provision hereof.
(c) Words of any gender used in this Note shall be construed
to include any other gender, and words in the singular shall
include the plural and vice versa, unless the context
otherwise requires.
(d) This Note shall be binding upon and inure to the benefit
of the Parties hereto and their respective heirs, legal
representatives, successors and assigns.
(e) This Note, together with the Agreement, contains the
entire agreement between the Parties hereto with respect to
the subject matter hereof and can be altered, amended or
modified only by a written instrument executed by both
Parties.
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(f) This Note may be executed in multiple copies, each
of which shall be deemed an original, and all of such
copies shall together constitute one and the same
instrument.
(g) Time is of the essence in the performance of each
obligation, covenant and condition under this Note.
(h) This Note shall be governed by the laws of the State
of Texas.
(i) This Note is performable in Dallas County, Texas.
SHOWBIZ PIZZA TIME, INC. (Lender)
By: Michael H. Magusiak
President
INTERNATIONAL ASSOCIATION OF SHOWBIZ
PIZZA TIME RESTAURANTS, INC. (Borrower)
By: Michael A. Hilton
President
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