EXHIBIT 10.1.3
AMENDMENT NO. 3
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT NO. 3 TO REVOLVING CREDIT AND TERM LOAN AGREEMENT dated
as of December 6, 2002 (this "Amendment"), by and among DAVE & BUSTER'S, INC.
("D & B"), the Subsidiaries of D&B (D&B collectively with such subsidiaries, the
"Borrowers"), FLEET NATIONAL BANK ("FNB"), the other lending institutions listed
on Schedule 1 to the Credit Agreement (together with FNB, the "Banks"), FNB as
administrative agent for the Banks (the "Agent") and Bank One, NA as
documentation agent (the "Documentation Agent"), amends certain provisions of
the Revolving Credit and Term Loan Agreement, dated as of June 30, 2000 among
the Borrowers, the Banks, the Agent and the Documentation Agent (as amended and
in effect from time to time, the "Credit Agreement"). Each capitalized term used
herein without definition shall have the meaning assigned to such term in the
Credit Agreement.
WHEREAS, the Borrowers, the Banks and the Agent have agreed to amend
certain terms and conditions of the Credit Agreement as specifically set forth
in this Amendment;
NOW THEREFORE, in consideration of the mutual agreements contained in
the Credit Agreement and herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. AMENDMENT TO SECTION 2.10 - RESTRICTION ON REVOLVING CREDIT
USAGE.
(a) By execution of this Amendment, Banks holding in aggregate at least
fifty-one percent (51%) of the Total Revolving Credit Commitment consent to the
Borrowers ability to reborrow Revolving Credit Loans under the Credit Agreement
after the date of this Amendment in excess of the $4,000,000 limitation set
forth in Section 2.10 of the Credit Agreement but subject to the other
restrictions set forth in the Credit Agreement.
(b) Section 2 of the Credit Agreement is hereby amended by deleting
Section 2.10 therefrom in its entirety.
SECTION 2. AMENDMENT TO SECTION 3 - MANDATORY PREPAYMENT OF REVOLVING
CREDIT LOANS. Section 3.2 of the Credit Agreement is hereby amended by deleting
the text thereof in its entirety and substituting the following therefor:
If at any time the sum of the Outstanding amount of the Revolving
Credit Loans, plus the Maximum Drawing Amount, plus all Unpaid
Reimbursement Obligations exceeds the Total Revolving Credit
Commitment, then the
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Borrowers shall immediately pay the amount of such excess to the Agent
for the respective accounts of the Banks for application to the
Revolving Credit Loans. Each prepayment of Revolving Credit Loans shall
be allocated among the Banks, in proportion, as nearly as practicable,
to the respective unpaid principal amount of each Bank's Revolving
Credit Note, with adjustments to the extent practicable to equalize any
prior payments or repayments not exactly in proportion. Each prepayment
pursuant to this Section 3.2 shall be made in accordance with the
provisions of Section 6.9. In addition to the mandatory prepayment
required by the preceding sentences, the Borrowers shall also prepay
the Revolving Credit Loans as required pursuant to Section 4.4.2.
SECTION 3. AMENDMENT OF SECTION 4.4.2.1 - MANDATORY PREPAYMENTS FROM
NET CASH PROCEEDS. Section 4.4.2.1 of the Credit Agreement is hereby amended by
deleting the proviso at the end of the third sentence of the last paragraph of
Section 4.4.2.1, which paragraph was inserted pursuant to Section 5(c) of
Amendment No. 2 to Revolving Credit and Term Loan Agreement dated as of November
10, 2001 among the parties hereto ("Amendment No. 2").
SECTION 4. AMENDMENT TO SECTION 5 - INCREASE IN LETTER OF CREDIT
SUBLIMIT. Section 5.1.1 of the Credit Agreement is hereby amended by deleting
the amount "$1,000,000" in clause (a) of the proviso to the first sentence
thereof and substituting the amount "$6,000,000" therefor.
SECTION 5. AMENDMENT OF SECTION 11.4 -NEW LEASES; CONSENT AND WAIVER
RELATING TO NEW LEASES ON EXISTING UNITS.
(a) Section 11.4 of the Credit Agreement is hereby amended by deleting
the text of clause (g) thereof in its entirety and substituting in place thereof
the following clause (g):
(g) sign any new real property leases in respect of Units which open or
become operational in or after Fiscal Year 2003 without the prior
written unanimous consent of the Banks.
(b) The Banks hereby waive any Events of Default under Section ll.4 of
the Credit Agreement as in effect after giving effect to Amendment No. 2 but
prior to the amendment contemplated by Section 5(a) of this Amendment which may
have resulted as a consequence of a Borrower signing a new lease with respect to
the following Units which were subject to Sale-Leaseback transactions: the Unit
located in Houston, Texas and identified as Store 003 on Schedule 8.24 of the
Credit Agreement, the Unit located in Atlanta, Georgia and identified as Store
004 on Schedule 8.24 of the Credit Agreement and the Borrowers' corporate
headquarters in Dallas, Texas.
SECTION 6. AMENDMENT OF SECTION 11.5 - MINIMUM EBITDA REQUIREMENT.
Section 11.5 of the Credit Agreement is hereby amended by reducing the required
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minimum Consolidated EBIDTA figure set forth for the third fiscal quarter of the
2003 Fiscal Year from "$9,500,000" to "$7,500,000.
SECTION 7. AFFIRMATION AND ACKNOWLEDGMENT. Each Borrower hereby
ratifies and confirms all of its Obligations to the Banks and the Agent,
including, without limitation, the Loans, and the Borrowers hereby affirm their
joint and several absolute and unconditional promise to pay to the Banks the
Loans, the Reimbursement Obligations, and all other amounts due under the Credit
Agreement as amended hereby. Each Borrower hereby confirms that the Obligations
are and remain secured pursuant to the Security Documents and pursuant to all
other instruments and documents executed and delivered by each Borrower as
security for the Obligations.
SECTION 8. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Banks and the Agent as follows:
(a) The execution and delivery by each Borrower of this Amendment and
the performance by each Borrower of its obligations and agreements under this
Amendment and the Credit Agreement as amended hereby are within the corporate
authority of such Borrower, have been duly authorized by all necessary corporate
proceedings on behalf of such Borrower, and do not and will not contravene any
provision of law, statute, rule or regulation to which such Borrower is subject
or any of such Borrower's charter, other incorporation papers, by-laws or any
stock provision or any amendment thereof or of any agreement or other instrument
binding upon such Borrower.
(b) Each of this Amendment and the Credit Agreement as amended hereby
constitutes the legal, valid and binding joint and several obligation of each
Borrower, enforceable in accordance with its respective terms, except as limited
by bankruptcy, insolvency, reorganization, moratorium or other laws relating to
or affecting generally the enforcement of creditors' rights.
(c) No approval or consent of, or filing with, any governmental agency
or authority is required to make valid and legally binding the execution,
delivery or performance by each Borrower of this Amendment and the Credit
Agreement as amended hereby.
(d) The representations and warranties contained in Section 8 of the
Credit Agreement are true and correct at and as of the date made and as of the
date hereof, except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date.
(e) Each Borrower has performed and complied in all material respects
with all terms and conditions herein required to be performed or complied with
by it prior to or at the time hereof, and as of the date hereof, after giving
effect to the provisions hereof, there exists no Event of Default or Default.
SECTION 9. EFFECTIVENESS. This Amendment (or if the written consent of
each of the Banks is not obtained as specified in Section 9.2, those sections of
this Amendment referred to Section 9.1 only) shall
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become effective retroactively to November 3, 2002 upon the satisfaction of the
following conditions precedent:
SECTION 9.1. MAJORITY BANK APPROVAL. Each section of this
Amendment other than the section specified in Section 9.2 shall become
effective upon the written consent of the Borrowers and the written
consent of the Majority Banks.
SECTION 9.2. UNANIMOUS BANK APPROVAL. The amendments to the
Credit Agreement set forth in Section 5 hereof shall become effective
upon the written consent of the Borrowers and the written consent of
each of the Banks.
SECTION 9.3. AMENDMENT FEES. The Borrowers shall have paid to
the Agent, for the account of each Bank which signs this Amendment, an
amendment fee in an amount equal to one eighth of one percent (0.125%)
of the sum of such Bank's Revolving Credit Commitment on December 6,
2002 plus the aggregate principal amount of such Bank's Term Loans
outstanding on December 6, 2002.
SECTION 9.4. NO MATERIAL ADVERSE CHANGE. The Majority Banks
shall be satisfied that there shall have occurred no material adverse
change in the business, operations, assets, management, properties,
financial condition, income or prospects of the Borrowers and their
Subsidiaries taken as a whole since February 3, 2002.
SECTION 9.5. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT.
Each of the representations and warranties of any of the
Borrowers and their Subsidiaries contained in this Amendment, the
Credit Agreement, the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with this Amendment
or the Credit Agreement shall be true as of the date as of which they
were made (except to the extent of changes resulting from transactions
contemplated or permitted by this Amendment or the Credit Agreement and
the other Loan Documents and changes occurring in the ordinary course
of business that singly or in the aggregate are not materially adverse,
and to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default shall
have occurred and be continuing.
SECTION 9.6. PROCEEDINGS AND DOCUMENTS. All proceedings in
connection with the transactions contemplated by this Amendment and all
other documents incident hereto shall be reasonably satisfactory in
substance and in form to the Agent.
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) Except as otherwise expressly provided by this Amendment, all of
the terms, conditions and provisions of the Credit Agreement shall remain the
same. It is declared and agreed by each of the parties hereto that the Credit
Agreement, as amended hereby, shall continue in full force and effect, and that
this Amendment and the Credit Agreement shall be read and construed as one
instrument.
(b) This Amendment is intended to take effect as an agreement under
seal and shall be construed according to and governed by the laws of the
Commonwealth of Massachusetts.
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(c) This Amendment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment, it shall not be necessary to produce or account for
more than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
(d) Each Borrower hereby agrees to pay to the Agent, on demand by the
Agent, all reasonable out-of-pocket costs and expenses incurred or sustained by
the Agent in connection with the preparation of this Amendment (including legal
fees).
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
a document under seal as of the date first above written.
DAVE & BUSTERS, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President,
Chief Financial Officer
DAVE & BUSTER'S I, L.P.
By: DAVE & BUSTER'S, INC., as general
partner
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President,
Chief Financial Officer
DAVE & BUSTER'S OF ILLINOIS, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W. C. Hammett, Jr.
Title: Vice President, Treasurer
DAVE & BUSTER'S OF GEORGIA, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
DAVE & BUSTER'S OF PENNSYLVANIA, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr
Title: Vice President, Treasurer
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DANB TEXAS, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
DAVE & BUSTER'S OF MARYLAND, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
DAVE & BUSTER'S OF CALIFORNIA, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
DAVE & BUSTER'S OF COLORADO, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
DAVE & BUSTER'S OF NEW YORK, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
DAVE & BUSTER'S OF FLORIDA, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
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DAVE & BUSTER'S OF PITTSBURGH, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
DAVE & BUSTER'S OF HAWAII, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
D&B REALTY HOLDING, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
D&B LEASING, INC.
By: /s/ W.C. Hammett, Jr.
----------------------
Name: W.C. Hammett, Jr.
Title: Vice President, Treasurer
FLEET NATIONAL BANK, individually and
as Agent
By: /s/ Alexander A. Burke
----------------------
Name: Alexander A. Burke
Title: Vice President
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BANK OF AMERICA, N.A.
For purposes of consenting to
Section 5 hereof only
By: /s/ Mark Henze
---------------
Name: Mark Henze
Title: Senior Vice President
BANK ONE, NA
(MAIN OFFICE, CHICAGO, ILLINOIS)
By: /s/ Wyatt Dickson
------------------
Name: Wyatt Dickson
Title: Executive Vice President
GUARANTY BANK
By: /s/ Robert S. Hays
------------------
Name: Robert S. Hays
Title: Senior Vice President
TRANSAMERICA EQUIPMENT FINANCIAL
SERVICES CORPORATION
By:
---------------------------
Name:
Title:
THE FROST NATIONAL BANK
By: /s/ Chris W. Holder
-------------------
Name: Chris W. Holder
Title: Senior Vice President
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HELLER FINANCIAL LEASING, INC.
By: /s/ Mike Record
----------------
Name: Mike Record
Title: Senior Vice President
ORIX FINANCIAL SERVICES, INC.
By: /s/ Terry Standifer
-------------------
Name: R. Terry Standifer
Title: Vice President
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