Exhibit 10.1


 


WAIVER NO. 1 TO AMENDED AND RESTATED
CREDIT AGREEMENT


 


WAIVER NO. 1 TO AMENDED
AND RESTATED CREDIT AGREEMENT (this “Waiver”), dated as of April 1, 2020, among
DAVE & BUSTER’S, INC., a Missouri corporation (the “Borrower”), the Lenders party or consenting hereto
constituting the Required Lenders (the “Lenders”) and BANK OF AMERICA, N.A., as administrative agent for the
Lenders (in such capacity, the “Administrative Agent”). All capitalized terms used
herein (including in this preamble) and not otherwise defined herein shall have the respective meanings provided such terms in
the Credit Agreement (as defined below).


 


W I T N E S S E T H:


 


WHEREAS, Dave & Buster’s
Holdings, Inc., a Delaware corporation, as a guarantor, the Borrower, the direct and indirect Subsidiaries of the Borrower from
time to time party thereto, as guarantors, the several financial institutions from time to time party thereto, as lenders, Swing
Line Lender and/or L/C Issuer, the Administrative Agent, and Wells Fargo Bank, National Association, as syndication agent, are
parties to that certain Amended and Restated Credit Agreement, dated as of August 17, 2017 (as
amended, restated, amended and restated, modified or supplemented from time to time, the “Credit Agreement”).


 


WHEREAS, pursuant to Section 13.13
of the Credit Agreement, the Borrower has requested that the Administrative Agent and the Required Lenders consent to the waiver
described in Section 1 hereof, and, subject to the satisfaction of the conditions set forth herein, the Administrative Agent
and the Required Lenders are willing to do so.


 


NOW, THEREFORE, for good
and valuable consideration, the receipt and adequacy of which is acknowledged by each party hereto, it is agreed:


 


1.      
Waiver. Subject to the satisfaction of the conditions set forth in Section 2 hereof, Lenders constituting Required
Lenders hereby agree to waive the requirement pursuant to Section 8.5(b) of the Credit Agreement that the opinion of KPMG LLP or
another firm of independent public accountants of recognized national standing that accompanies the annual audited financial statements
of the Consolidated Group Companies for the Fiscal Year ended February 2, 2020 be without going concern or any like qualification.


 


2.      
Conditions to Effectiveness. This Waiver shall become effective on the date (the “Waiver Effective Date”)
upon receipt by the Administrative Agent of a fully-executed copy of this Waiver by each Loan Party, the Administrative Agent and
the Required Lenders. 


 


3.      
No Waiver. Nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained
in the Credit Agreement or any of the other Loan Documents (other than as set forth herein), or constitute a course of conduct
or dealing among the parties. The Administrative Agent and Lenders reserve all rights, privileges and remedies under the Loan Documents.
Except as expressly amended hereby, the Credit Agreement and other Loan Documents remain unmodified and in full force and effect.



 


4.      
Counterparts; Integration. This Waiver may be executed in any number of counterparts, and by the different parties hereto
on separate counterpart signature pages, each of which shall constitute an original, and all such counterparts taken together shall
be deemed to constitute one and the same contract. Delivery of an executed counterpart of a signature page to this Waiver by facsimile
or other electronic transmission will be effective as delivery of a manually executed counterpart thereof. 


 






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5.      
Headings. Section headings used in this Waiver are for reference only and shall not affect the construction of this Agreement.


 


6.      
Governing Law. THIS WAIVER AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND ALL CLAIMS AND CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER HEREOF WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


7.      
Submission to Jurisdiction; Waiver of Jury Trial. The parties hereto hereby acknowledge and agree that this Waiver is subject
to Section 13.23 of the Credit Agreement, the terms of which are incorporated by reference herein, mutatis mutandis,
as if set forth in their entirety herein. 


 


[Remainder
of Page Intentionally Left Blank; Signature Page Follows]


 




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The parties hereto have caused this letter
to be duly executed and delivered by their duly authorized officers or other representatives as of the date first set forth above.


 





	 	BANK OF AMERICA, N.A., as Administrative Agent
	 	 	 	 
	 	By:	/s/ Charlene Wright-Jones
	 	 	Name:	Charlene Wright-Jones
	 	 	Title:	Vice President
	 	 	 	 
	 	BBVA USA, as Lender
	 	 	 	 
	 	By:	/s/ Jeffrey Piccinelli
	 	 	Name:	Jeffrey Piccinelli
	 	 	Title:	Senior Vice President
	 	 	 	 
	 	BMO HARRIS BANK N.A., as Lender
	 	 	 	 
	 	By:	/s/ Keith Watanabe
	 	 	Name:	Keith Watanabe
	 	 	Title:	Director
	 	 	 	 
	 	CAPITAL ONE, N.A., as Lender
	 	 	 	 
	 	By:	/s/ Michael Sullivan
	 	 	Name:	Michael Sullivan
	 	 	Title:	Duly Authorized Signatory
	 	 	 	 
	 	FIFTH THIRD BANK, NATIONAL ASSOICATION, as Lender
	 	 	 	 
	 	By:	/s/ Michael H. Keith
	 	 	Name:	Michael H. Keith
	 	 	Title:	Vice President
	 	 	 	 
	 	FIRST HORIZON BANK, as Lender
	 	 	 	 
	 	By:	/s/ Erik Toft
	 	 	Name:	Eric Toft
	 	 	Title:	Vice President
	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as Lender
	 	 	 	 
	 	By:	/s/ Alexander Vardaman
	 	 	Name:	Alexander Vardaman
	 	 	Title: 	Authorized Officer
	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATON, as Lender
	 	 	 	 
	 	By:	/s/ Brendan McGuire
	 	 	Name:	Brendan McGuire
	 	 	Title:	Executive Vice President



 






     


     


    

 


	 	REGIONS BANK, as Lender
	 	 	 	 
	 	By:	/s/ Ryan Fischer
	 	 	Name:	Ryan Fischer
	 	 	Title:	Managing Director
	 	 	 	 
	 	STIFEL BANK & TRUST, as Lender
	 	 	 	 
	 	By:	/s/ Daniel P. McDonald
	 	 	Name:	Daniel P. McDonald
	 	 	Title:	Vice President
	 	 	 	 
	 	SYNOVUS BANK, as Lender
	 	 	 	 
	 	By:	/s/ Robert Haley
	 	 	Name:	Robert Haley
	 	 	Title:	Officer
	 	 	 	 
	 	TRUIST BANK, as Lender
	 	 	 	 
	 	By:	/s/ Sheryl Squires Kerley
	 	 	Name:	Sheryl Squires Kerley
	 	 	Title:	Vice President
	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATON, as Lender
	 	 	 	 
	 	By:	/s/ Sean P. Walters
	 	 	Name:	Sean P. Walters
	 	 	Title:	Vice President
	 	 	 	 
	 	WEBSTER BANK, NATIONAL ASSOCIATON, as Lender
	 	 	 	 
	 	By:	/s/ Esther Catandella
	 	 	Name:	Esther Catandella
	 	 	Title:	Vice President
	 	 	 	 
	 	 	 	 
	 	DAVE & BUSTER’S, INC., as Borrower
	 	 	 	 
	 	By:	/s/ Brian Jenkins
	 	 	Name:	Brian Jenkins
	 	 	Title:	Chief Executive Officer