EXHIBIT 10.1.4
AMENDMENT NO. 4
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT NO. 4 TO REVOLVING CREDIT AND TERM LOAN AGREEMENT dated
as of March 18, 2003 (this "Amendment"), by and among DAVE & BUSTER'S, INC. ("D
& B"), the Subsidiaries of D&B signatories hereto (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 OF SECTION 11.2 - FIXED CHARGE COVERAGE RATIO.
Section 11.2 of the Credit Agreement is hereby amended by deleting the text
thereof in its entirety and substituting in place thereof the following:
"11.2. FIXED CHARGE COVERAGE RATIO. The Borrowers will not permit the
Fixed Charge Coverage Ratio, determined for any period of four
consecutive fiscal quarters ending on the last day of any fiscal
quarter of the Borrowers, to be less than 1.25:1.00."
SECTION 2. AMENDMENT OF SECTION 11.5 - MINIMUM EBITDA REQUIREMENT.
Section 11.5 of the Credit Agreement is hereby amended by reducing the required
minimum Consolidated EBIDTA figure set forth for the fourth fiscal quarter of
the 2003 Fiscal Year (ending February 2, 2003) from "$16,000,000" to
"$14,750,000".
SECTION 3. 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 4. 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 5. EFFECTIVENESS. This Amendment shall become effective
retroactively to February 2, 2003 upon the satisfaction of the following
conditions precedent:
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SECTION 5.1. MAJORITY BANK APPROVAL. This Amendment shall have
been duly executed and delivered to the Agent by the Borrowers and the
Majority Banks.
SECTION 5.2. AMENDMENT FEES. The Borrowers shall have paid to
the Agent, for the account of each Bank which signs this Amendment on
or prior to March 18, 2003, an amendment fee in an amount equal to
0.20% of the sum of such Bank's Revolving Credit Commitment on March
18, 2003 plus the aggregate principal amount of such Bank's Term Loans
outstanding on March 18, 2003.
SECTION 5.3. 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 5.4. 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 6. 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.
(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
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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.
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Name: W.C. Hammett, Jr.
Title: Senior Vice President, CFO
DAVE & BUSTER'S I, L.P.
By: DAVE & BUSTER'S, INC., as general partner
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Senior Vice President, CFO
DAVE & BUSTER'S OF ILLINOIS, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
DAVE & BUSTER'S OF GEORGIA, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
DAVE & BUSTER'S OF PENNSYLVANIA, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
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DANB TEXAS, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
DAVE & BUSTER'S OF MARYLAND, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
DAVE & BUSTER'S OF CALIFORNIA, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
DAVE & BUSTER'S OF COLORADO, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
DAVE & BUSTER'S OF NEW YORK, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
DAVE & BUSTER'S OF FLORIDA, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
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DAVE & BUSTER'S OF PITTSBURGH, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
DAVE & BUSTER'S OF HAWAII, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
D&B REALTY HOLDING, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
D&B LEASING, INC.
By: /s/ W.C. Hammett, Jr.
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Name: W.C. Hammett, Jr.
Title: Vice President and Treasurer
FLEET NATIONAL BANK, individually and as Agent
By: /s/ J. Nicholas Cole
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Name: J. Nicholas Cole
Title: Managing Director
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BANK OF AMERICA, N.A.
By: /s/ Mark Henze
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Name: Mark Henze
Title: Senior Vice President
BANK ONE, NA
(MAIN OFFICE, CHICAGO, ILLINOIS)
By: /s/ Alan L. Miller
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Name: Alan L. Miller
Title: First Vice President
GUARANTY BANK
By: /s/ Robert S. Hays
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Name: Robert S. Hays
Title: Senior Vice President
TRANSAMERICA EQUIPMENT FINANCIAL SERVICES
CORPORATION
By: /s/ Randall L. Allemang
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Name: Randall L. Allemang
Title: Vice President
THE FROST NATIONAL BANK
By: /s/ Stephanie Stover
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Name: Stephanie Stover
Title: Vice President
HELLER FINANCIAL LEASING, INC.
By:
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Name:
Title:
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ORIX FINANCIAL SERVICES, INC.
By: /s/ Mark A. Kassis
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Name: Mark A. Kassis
Title: Senior Vice President
ELF FUNDING TRUST I
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Todd Travers
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Name: Todd Travers
Title: Senior Portfolio Manager
RESTORATION FUNDING CLO, LTD.
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Todd Travers
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Name: Todd Travers
Title: Senior Portfolio Manager
KZH HIGHLAND - 2 LLC
By:
By:
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Name:
Title:
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