EXHIBIT 10.31
AMENDED AND RESTATED SUBORDINATION AGREEMENT
THIS AMENDED AND RESTATED SUBORDINATION AGREEMENT (this "Agreement"), dated
as of September 16, 2005, is by and among Bank of America, N.A. (successor in
interest to Fleet National Bank) (the "Senior Bank"), Patriot Capital Funding,
Inc. (successor in interest to Wilton Funding, LLC) as the purchaser and
servicer (the "Subordinated Creditor"), and Dover Saddlery, Inc., a
Massachusetts corporation (the "Borrower"), and acknowledged by Dover Saddlery,
Inc., a Delaware corporation (the "Parent"), and Smith Brothers, Inc., a Texas
corporation ("Smith", and together with the Senior Bank, the Subordinated
Creditor, the Borrower and the Parent, the "Parties").
WHEREAS, the Parties had previously entered into that certain Subordination
Agreement, dated as of December 11, 2003 (the "Existing Subordination
Agreement");
WHEREAS, the Borrower and the Senior Bank are parties to that certain
Amended and Restated Loan Agreement, dated as of December 11, 2003, ( the
"Existing Loan Agreement") pursuant to which the Borrower, the Parent and Smith
granted to the Senior Bank security interests in and other liens on all their
respective property pursuant to the Bank Agreements (as defined herein);
WHEREAS, the Borrower and the Senior Bank wish to amend the Existing Loan
Agreement pursuant to that certain First Amendment, dated as of September 16,
2005 (the "First Amendment", and together with the Existing Loan Agreement (as
may be further amended and as in effect from time to time), the "Loan
Agreement"), the Loan Agreement together with all related instruments, notes,
agreements and documents evidencing the Borrower's, the Parent's or Smith's
respective obligations thereunder or granting security interests and liens to
the Senior Bank being collectively referred to herein as the "Bank Agreements");
WHEREAS, the Borrower, the Parent, Smith and the Subordinated Creditor are
parties to that certain Senior Subordinated Note Purchase Agreement, dated as of
December 11, 2003 (the "Existing Subordinated Agreement")
WHEREAS, the Borrower, the Parent, Smith and the Subordinated Creditor wish
to amend and restate the Existing Subordinated Agreement, pursuant to that
certain Amended and Restated Senior Subordinated Note and Warrant Purchase
Agreement, dated as of September 16, 2005, (as amended in accordance with this
Agreement and as in effect from time to time, together with all related
instruments, notes, agreements and documents evidencing the Borrower's, the
Parent's or Smith's obligations thereunder, being collectively referred to
herein as the "Subordinated Agreement");
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WHEREAS, it is a condition precedent to the Senior Bank's willingness to
enter into the First Amendment and to make loans pursuant to the Bank Agreements
and to permit the Borrower, the Parent and Smith to enter into the Subordinated
Agreement, that the Borrower and the Subordinated Creditor enter into this
Agreement with the Senior Bank, and that the Parent and Smith acknowledge that
they will abide hereby; and
WHEREAS, in order to induce the Senior Bank to enter into the First
Amendment and to make loans pursuant to the Bank Agreements and to consent to
the entering into by the Borrower, the Parent and Smith of the Subordinated
Agreement, the Borrower and the Subordinated Creditor has agreed to enter into
this Agreement with the Senior Bank, and the Parent and Smith have agreed to
acknowledge same;
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
Section 1. Definitions. Terms not otherwise defined herein have the same
respective meanings given to them in the Loan Agreement. In addition, the
following terms shall have the following meanings:
"Loan Parties" shall mean, collectively, the Borrower, the Parent and
Smith.
"Senior Debt" shall mean all indebtedness and other obligations of the
Loan Parties to the Senior Bank of every kind and description, direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, regardless of how they arise or by what agreement or
instrument they may be evidenced, including, without limitation, all
"Obligations" under and as defined in the Bank Agreements and all principal,
interest, fees, costs, enforcement expenses (including reasonable legal fees and
disbursements), collateral protection expenses and other reimbursement or
indemnity obligations created or evidenced by any of the Bank Agreements or any
prior, concurrent, or subsequent notes, instruments or agreements of
indebtedness, liabilities or obligations of any type or form whatsoever in favor
of the Senior Bank; provided, however, that the principal referred to above
shall not (unless the Subordinated Creditor otherwise consents thereto in
writing) at any time exceed the sum of: (a) Eighteen Million ($18,000,000)
Dollars , plus (b) all indebtedness now existing or hereafter arising of the
Borrower in respect of any interest rate protection agreement covering a
notional principal amount which shall not exceed Eight Million ($8,000,000)
Dollars, and provided, further, that the indebtedness under this clause (b)
shall not at any time exceed an aggregate amount equal to Eight Hundred Thousand
($800,000) Dollars. Such maximum principal amount, as increased in accordance
with such consent from time to time, is referred to hereafter as the "Maximum
Senior Debt". Senior Debt shall expressly include any and all interest accruing
or out of pocket costs or expenses incurred after the date of any filing by or
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against any Loan Party of any petition under the federal Bankruptcy Code or any
other Bankruptcy, insolvency or reorganization act regardless of whether the
Senior Bank's claim therefor is allowed or allowable in the case or proceeding
relating thereto.
"Subordinated Debt" shall mean all indebtedness and other obligations
of the Loan Parties to the Subordinated Creditor of every kind and description,
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, under the Subordinated Agreement, including, without
limitation, all principal, interest, fees, costs, enforcement expenses
(including legal fees and disbursements), collateral protection expenses, other
reimbursement and indemnity obligations, so-called put and call rights,
tag-along rights and the like, and any fees or charges created or evidenced by
the Subordinated Agreement or any subsequent notes, instruments or agreements or
indebtedness, liabilities or obligations of any type or form issued in payment
or in connection with the Subordinated Agreement. "Subordinated Debt" shall
include, without limitation, (i) the warrants exercisable for shares of common
stock representing .78% of the Convertible Securities (as defined in the
Subordinated Agreement) of the Parent on a fully diluted basis (the "Warrants")
and the put-right exercisable with respect thereto (the "Put Right"), with such
Warrants issued and Put Right granted pursuant to that certain Warrant
Agreement, dated as of September 16, 2005 (the "Warrant Agreement") and (ii) any
and all guaranties provided to the Subordinated Creditor by any Subsidiary of
any Loan Party.
"Subordinated Documents" shall mean collectively, the Subordinated
Agreement, the Warrant Agreement, any promissory notes executed in connection
therewith and any and all guaranties, pledges and security interests, mortgages
and other liens directly or indirectly guarantying or securing any of the
Subordinated Debt, any and all other documents or instruments evidencing or
further guarantying or securing directly or indirectly any of the Subordinated
Debt, whether now existing or hereafter created.
Section 2. Subordination.
(a) Anything in any agreement between the Loan Parties and the
Subordinated Creditor to the contrary notwithstanding, the Subordinated Debt
shall be subordinate and junior in right of payment and priority, to the extent
and in the manner set forth in this Agreement, to the Senior Debt. If at any
time the Revolving Loans outstanding under the Loan Agreement shall be paid in
full in cash without terminating the Loan Agreement, subsequent borrowings by
the Borrower under the Loan Agreement shall constitute Senior Debt for purposes
of this Agreement. Upon the occurrence of an Event of Default, the Senior Bank
will provide the Subordinated Creditor, with reasonable promptness, a copy of
any notice of such Event of Default then being provided to the Borrower.
(b) In no event shall the Subordinated Creditor exercise the Put Right
prior to the maturity of the Senior Credit Agreement and the repayment in full
in cash of the Senior Debt.
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(c) Except as provided in clause (d) below, unless and until all
Senior Debt shall have been paid in full in cash and the Loan Agreement shall
have been terminated, no Loan Party will, nor will permit any subsidiary or
affiliate to, directly or indirectly, make or agree to make, and neither the
holder nor any assignee or successor holder of any Subordinated Debt will
demand, accept or receive from any Loan Party or any other person or entity, (i)
any payment (in cash, property or securities, by set-off or otherwise), direct
or indirect, of or in respect of any Subordinated Debt (including, without
limitation, any payment with respect to the exercise of the Put Right), and no
such payment shall be accepted by any holder of any Subordinated Debt, or (ii)
any payment for the purpose of any redemption, purchase or other acquisition,
direct or indirect, of any Subordinated Debt, and no such payment shall be due.
(d) The Senior Bank acknowledges that the Borrower may make and the
Subordinated Creditor may receive (i) regularly scheduled monthly payments of
cash interest with respect to the Subordinated Debt, at the maximum rate of
11.50% per annum as set forth in Section 3.1(a) of the Subordinated Agreement as
in effect on the date hereof and delivered to the Senior Bank, (ii) any interest
accrued at a default or overdue rate set forth in the Subordinated Agreement,
and (iii) any costs and expenses required to be reimbursed or paid by the
Borrower to the Subordinated Creditor not to exceed $50,000 in the aggregate in
any fiscal year of the Borrower, provided that on the date upon which any such
interest payment is proposed to be made, and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing; provided,
however, that if (i) during any fiscal quarter the Subordinated Creditor
receives or accepts one or more payments under the Subordinated Debt (the
"Quarterly Sub Debt Payments") and (ii) the Senior Bank determines upon receipt
of the Borrower's quarterly financial statements with respect to the fiscal
quarter immediately preceding the fiscal quarter in which such Quarterly Sub
Debt Payments were made that a Default or Event of Default was then continuing,
the Senior Bank shall have a period of 15 Business Days after receipt of such
financial statements to request that such Quarterly Sub Debt Payments received
by the Subordinated Creditor be paid over to the Senior Bank for application to
the Senior Debt. It is hereby acknowledged and agreed that no principal shall be
payable in respect of the Subordinated Agreement until the Senior Debt has been
paid in full in cash and the Loan Agreement has been terminated, provided,
however, that if the maturity of the Senior Debt has been extended beyond
September 16, 2009 (the first date on which the Subordinated Debt begins to
amortize), the regularly scheduled repayments of principal of the Subordinated
Debt (but not prepayments) may be made by the Borrower in accordance with the
terms of the Subordinated Agreement as in effect on the date hereof and
delivered to the Senior Bank, provided that on the due date of any such
principal payment, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing.
(i) In the event that a Default or Event of Default has occurred and is
continuing under Section 6.1(i) of the Loan Agreement (a "Payment Default") and
the Subordinated Creditor shall have received notice of such Default or Event of
Default (or otherwise have
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actual knowledge thereof), no payments shall be made by any Loan Party or
accepted by either Subordinated Creditor until the earlier to occur of (x) the
date on which the Senior Debt is paid in full in cash and the Loan Agreement is
terminated and (y) the date, if any, on which the Senior Bank has given written
notice to the Subordinated Creditor that such Default or Event of Default is
cured or waived (a "Cure Notice"), so long as at such date (A) the Subordinated
Creditor has not been notified (or do not have actual knowledge) of any
additional Default or Event of Default under the Loan Agreement is continuing,
(B) there is not an Other Default Standstill Period (defined below) in effect,
(C) the Senior Bank has not accelerated the Revolving Loans or commenced an
action, suit, or other legal proceeding against any Loan Party or its property,
or (D) the Senior Bank shall not be prosecuting the Senior Bank's rights under
the Uniform Commercial Code or other applicable law to foreclose and realize
upon the Collateral securing the Obligations (all such conditions being referred
to herein as the "Payment Cure Conditions"; and each period of time during which
such Payments shall not be permitted to be made or accepted as a result of a
Payment Default referred to as a "Payment Standstill Period").
(ii) In the event that a Default or Event of Default other than a Payment
Default (an "Other Default") has occurred and is continuing, the Senior Bank may
(but shall not be obligated to) give a standstill notice to the Subordinated
Creditor (a "Standstill Notice"), and upon the giving of such Standstill Notice,
no payments on the Subordinated Debt shall be made or accepted until the earlier
to occur of (x) the date which is 180 days after the date upon which such
Standstill Notice has been given, or (y) the date, if any, on which the Senior
Bank has given a Cure Notice to the Subordinated Creditor that such Other
Default has been cured or waived, so long as at such date, (A) no Payment
Default has occurred and is continuing, (B) the Senior Bank has not accelerated
any of the Revolving Loans or commenced an action, suit, or other legal
proceeding against any Loan Party or its property, or (C) the Senior Bank shall
not be prosecuting the Senior Bank's rights under the Uniform Commercial Code or
other applicable law to foreclose and realize upon the Collateral securing the
Senior Debt (each period of time during which such payments shall not be
permitted to be made or accepted as a result of a Default or Event of Default
other than a Payment Default referred to as an "Other Default Standstill
Period"). At no time during the term of this Agreement shall such Other Default
Standstill Periods pursuant to this clause (ii) be in effect for more than an
aggregate of 180 days in any consecutive 360-day period. However, if (and on
each occasion that) a Subordinated Creditor Default (as hereinafter defined)
shall occur solely as a result of the breach of a financial covenant thereunder
(a "Financial Covenant Default"), and if at the time of such occurrence one or
more Other Default Standstill Periods have already been in effect for an
aggregate of 180 days, then, notwithstanding the immediately preceding sentence,
the Senior Bank shall be permitted to invoke an additional Other Default
Standstill Period of 30 days with respect to such Financial Covenant Default, by
giving a Standstill Notice to the Subordinated Creditor.
Interest, if any, in excess of 11.50% per annum accrued on the Subordinated
Debt, or premium, if any, accrued on the Subordinated Debt, shall not be paid
until all Senior Debt has been paid in full in cash and the Loan Agreement has
been terminated (it being
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understood that invoking a default or overdue rate set forth in the Subordinated
Agreement shall not be restricted hereunder, provided that its payment is
subject to the terms of this Agreement).
(d) The Subordinated Creditor shall, simultaneously with the execution
and delivery of this Agreement, (i) cause a conspicuous legend to be placed on
the Subordinated Agreement, satisfactory in all respect to the Senior Bank,
regarding the subordination reflected herein, and (ii) deliver executed copies
of the Subordinated Agreement to the Senior Bank.
Section 3. Enforcement.
(a) The Subordinated Creditor will not take or omit to take any action
or assert any claim with respect to the Subordinated Debt or otherwise which is
inconsistent with the provisions of this Agreement. Without limiting the
foregoing, until the Senior Debt has been paid in full in cash and the Loan
Agreement has been terminated, the Subordinated Creditor will not assert,
collect or enforce the Subordinated Debt or any part thereof or take any action
to foreclose or realize upon the Subordinated Debt or any part thereof or
enforce any of the Subordinated Documents except to the extent (but only to such
extent) that the commencement of a legal action may be required to toll the
running of any applicable statute of limitation. Notwithstanding the foregoing,
upon the occurrence of an event of default under the Subordinated Documents (a
"Subordinated Creditor Default"), the Subordinated Creditor may take enforcement
action against the Borrowers upon the earlier to occur of (x) 15 Business Days
after the acceleration of the Senior Debt, and (y) the date which is 180 days
after the date upon which such Subordinated Creditor Default has occurred so
long as the Subordinated Creditor have provided written notice to the Senior
Bank of their intention to commence enforcement action at least 15 Business Days
(but no more than 60) days prior to such commencement; provided, however, in the
case of clauses (x) and (y) above, if any acceleration of the Senior Debt is
rescinded by the Senior Bank, then any acceleration by the Subordinated Creditor
shall be rescinded immediately and all other enforcement action, if any, being
taken by the Subordinated Creditor in connection with such acceleration shall
terminate immediately, if based solely on the acceleration of the Senior Debt,
and provided, further, that the Subordinated Creditor shall at no time and under
no circumstances whatsoever be permitted to take enforcement action with respect
to the Junior Liens (defined below). Until the Senior Debt has been paid in full
in cash and the Loan Agreement has been terminated, the Subordinated Creditor
shall not have any right of subrogation, reimbursement, restitution,
contribution or indemnity arising from any payments made by the Subordinated
Creditor or on account of the Subordinated Debt to the Senior Bank or by virtue
of this Agreement whatsoever from any assets of any Loan Party or any guarantor
of or provider of collateral security for the Senior Debt (which right the
Subordinated Creditor may assert following such payment in full). The
Subordinated Creditor further waives any and all rights with respect to
marshaling. In case any Subordinated Debt is declared due and payable because of
the occurrence of a default under circumstances when the terms of Section 3(b)
are not applicable, the holders of
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such Subordinated Debt shall not be entitled to receive any payment or
distribution in respect thereof until all Senior Debt at the time outstanding
shall have been paid in full in cash and the Loan Agreement shall been
terminated. Upon the occurrence of a Subordinated Creditor Default, the Borrower
and the Subordinated Creditor will give prompt notice in writing of such
happening to the Senior Bank.
(b) The Subordinated Creditor will not commence or join with any other
creditor or creditors of any Loan Party in commencing any bankruptcy,
reorganization, insolvency or similar proceedings against any Loan Party. In the
event of any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to any Loan Party
or its property, any proceeding for the liquidation, dissolution or other
winding-up of any Loan Party, voluntary or involuntary, and whether or not
involving insolvency or bankruptcy proceedings, any general assignment by any
Loan Party for the benefit of creditors, or any distribution, division,
marshaling or application of any of the properties or assets of any Loan Party
or the proceeds thereof to creditors, voluntary or involuntary, and whether or
not involving legal proceedings, then and in any such event:
(i) all Senior Debt shall first be paid in full in cash (including all
principal, premium, if any, and interest) before any payment or
distribution of any character, whether in cash, securities or other
property (other than securities of the Borrower or any other corporation
provided for by a plan of reorganization or readjustment or similar plan,
the payment of which is subordinated, at least to the extent provided in
this Agreement with respect to Subordinated Debt, to the payment of all
Senior Debt at the time outstanding and to any securities issued in respect
thereof under any such plan), shall be made in respect of any Subordinated
Debt;
(ii) any payment or distribution of any character, whether in cash,
securities or other property, which would otherwise (but for the terms
hereof) be payable or deliverable in respect of any Subordinated Debt,
shall be paid or delivered directly to the Senior Bank, for application to
the payment of the Senior Debt, until all Senior Debt shall have been paid
in full in cash and the Loan Agreement shall have been terminated, and the
holders of the Subordinated Debt at the time outstanding irrevocably
authorize, empower and direct all receivers, trustees, liquidators,
conservators, fiscal agents and others having authority in the premises to
effect all such payments and deliveries;
(iii) each holder of the Subordinated Debt at the time outstanding
hereby irrevocably authorizes and empowers the Senior Bank to demand, sue
for, collect and receive of all such payments and distributions and to
receipt therefor; and
(iv) the holders of the Subordinated Debt shall execute and deliver to
the Senior Bank, when and as deemed appropriate by the Senior Bank
hereunder,
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all such further instruments confirming the above authorization, and all
such powers of attorney, proofs of claim, assignments of claim and other
instruments, and shall take all such other action, as may be requested by
the Senior Bank to enforce all claims upon or in respect of the
Subordinated Debt as provided herein.
(c) For all purposes of this Agreement, Senior Debt shall not be
deemed to have been paid in full unless (i) the holders thereof shall have
received cash equal to the amount of Senior Debt at the time outstanding and the
Loan Agreement shall have been terminated, or (ii) the holders of the Senior
Debt otherwise consent to the termination of the Loan Agreement.
(d) No present or future holder of Senior Debt shall be prejudiced in
the right to enforce subordination of the Subordinated Obligations by any act or
failure to act on the part of any Loan Party or the Subordinated Creditor.
(e) It is understood and agreed that the Subordinated Creditor shall
retain the right to vote all or any part of the Subordinated Debt for purposes
of (among other things) accepting or rejecting any plan of partial or complete
liquidation, reorganization, arrangement, composition or extension, provided
that the Subordinated Creditor shall not vote with respect to any such plan or
take any other action in any way so as to (i) contest the validity of any Senior
Debt or any collateral therefor or guaranties thereof, (ii) contest the relative
rights and duties of any holders of any Senior Debt established in any
instruments or agreements creating or evidencing any of the Senior Debt with
respect to any of such collateral or guaranties, (iii) contest such Subordinated
Creditor's obligations and agreements set forth in this Agreement, or (iv)
accept or confirm any plan of partial or complete liquidation, reorganization,
arrangement, composition or extension that the Senior Bank opposes or votes
against. Upon the failure of the Subordinated Creditor to file appropriate
proofs of claim, serve such proofs of claim upon the Senior Bank or take any
other appropriate action within 20 days prior to the date (after giving effect
to any extension) such proof of claim is due or other action needs to be taken,
the Subordinated Creditor each irrevocably authorize and empower the Senior Bank
to file such claims or take such actions.
(f) It is understood and agreed that, upon commencement of enforcement
action by the Senior Bank against the Borrower under the Bank Agreements, the
Subordinated Creditor shall have the right, but not the obligation, to purchase
all, but not less than all, of the Senior Debt from the Senior Bank in cash and
assume all rights and obligations of the Senior Bank under the Bank Agreements,
provided that any such purchase must be on terms and conditions (including
amount) satisfactory in all respects to the Senior Bank.
Section 4. Payments Held in Trust.
(a) The Subordinated Creditor will hold in trust and immediately pay
over to the Senior Bank, in the same form of payment received, with appropriate
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endorsements, for application to the Senior Debt, any cash amount that any Loan
Party pays to the Subordinated Creditor with respect to the Subordinated Debt
(except for those payments expressly permitted to be made pursuant to Section
2(c) above), and will hold in trust as collateral for the Senior Debt any other
assets of any Loan Party that the Subordinated Creditor may receive with respect
to Subordinated Debt. Any such payments or distributions so paid over to the
Senior Bank by the Subordinated Creditor in accordance with this clause (a)
shall not constitute payments with respect to the Subordinated Debt and as such
will not reduce the outstanding amount of the Subordinated Debt.
(b) If any payment or distribution of any character (whether in cash,
securities or other property) or any security shall be received by any holder of
any of the Subordinated Debt in contravention of any of the terms of this
Agreement, such payment or distribution or security shall be held in trust for
the benefit of, and shall be paid over or delivered and transferred to the
Senior Bank, for application to the payment of all Senior Debt remaining unpaid,
to the extent necessary to pay all such Senior Debt in full. In the event of the
failure of any holder of any of the Subordinated Debt to endorse or assign any
such payment, distribution or security, the Senior Bank is hereby irrevocably
authorized to endorse or assign the same. Any such payments or distributions so
paid over to the Senior Bank by the Subordinated Creditor in accordance with
this clause (b) shall not constitute payments with respect to the Subordinated
Debt and as such will not reduce the outstanding amount of the Subordinated
Debt.
Section 5. Defense to Enforcement. If the Subordinated Creditor, in
contravention of the terms of this Agreement, shall commence, prosecute or
participate in any suit, action or proceeding against any Loan Party, then the
Senior Bank may intervene and interpose such defense or plea in its name or in
the name of such Loan Party. If either Subordinated Creditor, in contravention
of the terms of this Agreement, shall attempt to collect any of the Subordinated
Debt or enforce any of the Subordinated Documents, then the Senior Bank may, by
virtue of this Agreement, restrain the enforcement thereof in the name of the
Senior Bank or in the name of the Loan Parties. If either Subordinated Creditor,
in contravention of the terms of this Agreement, obtains any cash or other
assets of any Loan Party as a result of any administrative, legal or equitable
actions, or otherwise, the Subordinated Creditor agrees forthwith to pay,
deliver and assign to the Senior Bank, with appropriate endorsements, any such
cash for application to the Senior Debt and any such other assets as collateral
for the Senior Debt. Any such payments or distributions so paid over to the
Senior Bank by the Subordinated Creditor in accordance with this Section 5 shall
not constitute payments with respect to the Subordinated Debt and as such will
not reduce the outstanding amount of the Subordinated Debt.
Section 6. Liens. (a) Neither Subordinated Creditor shall have or claim any
security interest, lien, claim, right or other Encumbrance in or on any property
of any Loan Party, other than the Subordinated Creditor may be named as loss
payees on up to $2,000,000 of key man life insurance held by the Loan Parties
(whereupon Citizens Capital, Inc. shall cease to be a loss payee thereunder) and
as expressly permitted by Section 5.6 of the Loan Agreement (the "Junior
Liens"). The Senior Debt, and all obligations of the Loan Parties
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under the Loan Agreement and the other Bank Agreements and any and all other
documents and instruments evidencing or creating the Senior Debt, and all
guaranties, mortgages, security agreements, pledges and other collateral
guarantying or securing the Senior Debt or any part thereof shall be senior to
the Subordinated Debt, the Junior Liens and all obligations of the Loan Parties
under all of the Subordinated Documents irrespective of the time of the
execution, delivery or issuance of any thereof or the filing or recording for
perfection of any thereof or the filing of any financing statements of
continuation statement relating to any thereof or the time, order or method of
attachment, perfection, filing or recording of any Encumbrance. In addition,
each Subordinated Creditor hereby agrees that, unless and until all Senior Debt
shall have been paid in full in cash and the Loan Agreement shall have been
terminated, it shall not at any time enforce or realize upon the Junior Liens.
Each Subordinated Creditor hereby agrees, upon request of the Senior Bank at any
time and from time to time, to execute such other documents or instruments as
may be reasonably requested by the Senior Bank further to evidence of public
record or otherwise the senior priority of the Senior Debt as contemplated by
this Agreement, and further agrees that the Senior Bank shall have the right to
control the filing of all financing statements naming the Subordinated Creditor
as a secured party. Each Subordinated Creditor further agrees to maintain on its
books and records such notations as the Senior Bank may reasonably request to
reflect the subordination contemplated by this Agreement and to perfect or
preserve the rights of the Senior Bank hereunder. A copy of this Agreement may
be filed as a financing statement in any Uniform Commercial Code recording
office.
(b) Without limiting any of the rights of the Senior Bank under the Loan
Agreement, the other Bank Agreements or applicable law, in the event that the
Senior Bank releases any collateral for the Senior Debt in connection with a
sale, transfer or other disposition of same, which collateral also is subject to
the Junior Lien, such collateral shall thereupon be deemed to have been
automatically released from the Subordinated Agreement and Junior Lien in favor
of the Subordinated Creditor, provided that any net proceeds of any sale or
disposition of collateral in connection with such release shall be applied to
the Obligations.
Section 7. Senior Bank's Freedom of Dealing. Each Subordinated Creditor
agrees, with respect to the Senior Debt and any and all collateral therefor and
guaranties thereof, that the Borrower and the Senior Bank may agree to increase
the amount of the Obligations under (and as defined in) the Bank Agreements
(subject to the Maximum Senior Debt limitations set forth in the definition of
Senior Debt contained in Section 1 hereof), and that the Borrower and the Senior
Bank may otherwise modify the terms of any of the Senior Debt, and the Senior
Bank may grant extensions of the time of payment or performance to and make
compromises, including releases of collateral or guaranties, and settlements
with the Borrower and all other persons, in each case without the consent of the
Subordinated Creditor or the Borrower and without affecting the agreements of
the Subordinated Creditor or the Loan Parties contained in this Agreement. The
terms of this Agreement, the subordination effected hereby and the rights of the
holders of the Senior Debt shall not be affected by any amendment of or addition
or supplement to any Senior
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Debt or any instrument or agreement relating thereto, any exercise or
non-exercise of any right, power or remedy under or in respect of any Senior
Debt or any instrument or agreement relating thereto, or any waiver, consent,
release indulgence, extension, renewal, modification, delay or other action,
inaction or omission, in respect of any Senior Debt or any instrument or
agreement relating thereto or any security therefor or guaranty thereof, whether
or not any holder of any Subordinated Debt shall have had notice or knowledge of
any of the foregoing. Notwithstanding the foregoing, the Senior Bank shall not
(i) increase the interest margin with respect to the Senior Debt by more than
200 basis points above the highest margin specified in the pricing grid, except
in connection with the imposition of a default rate of interest in accordance
with the terms of the Loan Agreement, or (ii) extend the final maturity of the
Senior Debt by more than 60 days without the consent of the Subordinated
Creditor, such consent not to be unreasonably withheld or delayed.
Section 8. Modification or Sale of the Subordinated Debt. The Subordinated
Agreement may be amended or modified without the consent of the Senior Bank,
except for any of the following amendments or modifications, which will require
the Senior Bank's prior written consent:
(i) any increase in the principal amount of the Subordinated Debt;
(ii) any shortening of the maturity of the Subordinated Debt (including by
way of acceleration, except as otherwise provided herein) or any
change in any of the prepayment or repurchase provisions, if any, or
any other alteration of the repayment provisions of the Subordinated
Debt in any respect;
(iii) any increase in the interest rate, default rate, fees or premium
applicable to the Subordinated Debt;
(iv) any amendment to any covenants or events of default contained in the
Subordinated Documents so as to make them more restrictive;
(v) the addition of any covenants or events of default to the Subordinated
Debt Documents (including the addition of a cross-default of the
Subordinated Debt to a Default or Event of Default under the Senior
Debt, which such cross-default shall not be permitted);
(vi) the requirement of any lien or other security for the Subordinated
Debt (other than the Junior Liens expressly permitted hereunder and
subject to the limitations contained herein);
(vii) any change in any Subordinated Agreement that could reasonably be
expected to materially increase either Subordinated Creditor's rights
in relation to those of the Senior Bank or could reasonably be
expected to
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adversely affect the Senior Bank or its rights and remedies against
any Loan Party or the Senior Bank; and
(viii) any change or amendment to the Warrant Agreement which would permit
the exercise of the Put Right prior to the maturity of the Senior
Credit Agreement and the final repayment in full in cash of the Senior
Debt
Further, neither Subordinated Creditor will sell, transfer, pledge, assign,
hypothecate or otherwise dispose of any or all of the Subordinated Debt to any
person other than to the other Subordinated Creditor or to a person (i) that is
a legal entity that controls, or is controlled by, or is under common control
with, such Subordinated Creditor, (ii) iStar Financial, Inc., as lender to the
Subordinated Purchaser, or (iii) who is reasonably satisfactory to the Senior
Bank, such approval not to be unreasonably withheld or delayed, provided that,
in each case, such assignee shall agree in a writing, satisfactory in form and
substance to the Senior Bank, to become a party hereto and to succeed to the
rights and to bound by all of the obligations of the Subordinated Creditor
hereunder. Except with respect to dispositions to iStar Financial, Inc. by the
Subordinated Creditor (which notice shall be provided by the Subordinated
Creditors with reasonable promptness not later than the closing of such
disposition), in the case of any such disposition by the Subordinated Creditor,
the Subordinated Creditor will notify the Senior Bank at least 20 days prior to
the date of any of such intended disposition.
Section 9. Borrower's Obligations Absolute. Nothing contained in this
Agreement shall impair, as between the Borrower and the Subordinated Creditor,
the obligation of the Borrower to pay to the Subordinated Creditor all amounts
payable in respect of the Subordinated Debt as and when the same shall become
due and payable in accordance with the terms thereof, all, however, subject to
the rights of the Senior Bank and the restrictions on the Subordinated Creditor
as set forth in this Agreement.
Section 10. Termination of Subordination. This agreement shall continue in
full force and effect, and the obligations and agreements of the Subordinated
Creditor and the Loan Parties hereunder shall continue to be fully operative,
until all of the Senior Debt shall have been paid and satisfied in full in cash
and such full payment and satisfaction shall be final and not voidable. To the
extent that any Loan Party or any guarantor of or provider of collateral for the
Senior Debt makes any payment on the Senior Debt that is subsequently
invalidated, declared to be fraudulent or preferential or set aside or is
required to be repaid to a trustee, receiver or any other party under any
Bankruptcy, insolvency or reorganization act, state or federal law, common law
or equitable cause, except to the extent that any such payment is found by a
final, non-appealable judgment of a court to arise from the willful misconduct
of the Senior Bank (such payment being hereinafter referred to as a "Voided
Payment"), then to the extent of such Voided Payment, that portion of the Senior
Debt that had been previously satisfied by such Voided Payment shall be revived
and continue in full force and effect as if such Voided Payment had never been
made. In the event that a Voided Payment is recovered from the Senior Bank, an
Event of Default shall be deemed to have existed
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and to be continuing under the Loan Agreement from the date of the Senior Bank's
initial receipt of such Voided Payment until the full amount of such Voided
Payment is restored to the Senior Bank. During any continuance of any such Event
of Default, this Agreement shall be in full force and effect with respect to the
Subordinated Debt. To the extent that either Subordinated Creditor has received
any payments with respect to the Subordinated Debt subsequent to the date of the
Senior Bank's initial receipt of such Voided Payment and such payments have not
been invalidated, declared to be fraudulent or preferential or set aside or are
required to be repaid to a trustee, receiver, or any other party under any
Bankruptcy act, state or federal law, common law or equitable cause, the
Subordinated Creditor shall be obligated and hereby agree that any such payment
so made or received shall be deemed to have been received in trust for the
benefit of the Senior Bank, and the Subordinated Creditor hereby agrees to pay
to the Senior Bank, upon demand, the full amount so received by the Subordinated
Creditor during such period of time to the extent necessary fully to restore to
the Senior Bank the amount of such Voided Payment. Upon the payment and
satisfaction in full in cash of all of the Senior Debt, which payment shall be
final and not voidable, this Agreement will automatically terminate without any
additional action by any party hereto.
Section 11. Waivers, etc. Except as expressly provided herein, the
provisions contained herein and the undertakings and agreements hereunder shall
not be affected by: (a) any rescission, waiver, amendment or modification of any
agreement referred to herein; (b) any exercise or nonexercise of any right,
remedy, power or privilege (including, without limitation, any sale, release or
exchange of any security) under in respect of any such agreement or applicable
law, including, without limitation, any waiver, consent, extension, indulgence
or other action or inaction in respect of any thereof; or (c) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding of or affecting any Loan Party. Except as required hereby,
proceeds from any collateral held by or for the benefit of the Senior Bank may
be applied to payment of any liabilities under the Bank Agreements, as the
Senior Bank shall determine in its sole discretion.
Section 12. Notices. All notices and other communications which are
required and may be given pursuant to the terms of this Agreement shall be in
writing and shall be sufficient and effective in all respects if telecopied or
delivered (including by any commercial delivery service) or mailed by registered
or certified mail, postage prepaid, as follows:
(a) If to the Senior Bank, to it at: Bank of America, N.A., One Hundred
Federal Street, Boston, Massachusetts 02110, Attention: John F. Lynch,
with a copy to Philip A. Herman, Esq., Goulston & Storrs, 400 Atlantic
Avenue, Boston, Massachusetts 02110-3333;
(b) If to the Borrower, to it at: Dover Saddlery, Inc., 525 Great Road,
Littleton, Massachusetts 01460, Attention: Stephen L. Day, with a copy
to
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Preti, Flaherty, Beliveau, Pachios & Haley, LLC, 57 North Main Street,
Concord, New Hampshire 03302; and
(c) If to the Subordinated Creditor, to it at: Patriot Capital Funding,
Inc., 274 Riverside Avenue, Westport, Connecticut 06880, Attention:
Timothy W. Hassler, with a copy to Edwards & Angell, LLP, Three
Stamford Plaza, 301 Tresser Boulevard, Stamford, Connecticut 06901,
Attention: Evan S. Seideman, Esq.;
or such other address or addresses as any party hereto shall have designated
have designated by written notice to the other parties hereto. Notices shall be
deemed given and effective upon the earlier to occur of (i) the fifth day
following deposit thereof in the U.S. mail or (ii) receipt by the party to whom
such notice is directed.
Section 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts
(without giving effect to provisions relating to conflicts of law). Any legal
action or proceeding arising out of or relating to this Agreement or any
Obligation may be instituted in the courts of the Commonwealth of Massachusetts
or of the United States of America for the District of Massachusetts, and each
of the Senior Bank, the Borrower and the Subordinated Creditor hereby
irrevocably submits to the jurisdiction of each such court in any such action or
proceeding, provided, however, that the foregoing shall not limit the Senior
Bank's rights to bring any legal action or proceeding in any other appropriate
jurisdiction in which event, at the Senior Bank's option, the laws of such
jurisdiction or of the Commonwealth of Massachusetts shall apply. Personal
jurisdiction over each of the Senior Bank, the Borrower and the Subordinated
Creditor may be obtained by the mailing (postage prepaid) of a summons or
similar legal document to each of the Senior Bank, the Borrower and the
Subordinated Creditor at their respective addresses for notices under this
Agreement.
Section 14. Waiver of Jury Trial. EACH OF THE SENIOR BANK, THE SUBORDINATED
CREDITOR AND THE LOAN PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER WRITTEN OR VERBAL) OR ACTIONS OF ANY
PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER
INTO THIS AGREEMENT AND FOR THE SENIOR BANK TO MAKE LOANS AND EXTEND CREDIT TO
THE BORROWER. EXCEPT AS PROHIBITED BY LAW, THE SENIOR BANK, THE SUBORDINATED
CREDITOR AND THE LOAN PARTIES EACH HEREBY WAIVES ANY RIGHT WHICH IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
-14-
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE SENIOR
BANK, THE SUBORDINATED CREDITOR AND THE BORROWER EACH (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT EACH OTHER PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS
AND CERTIFICATIONS CONTAINED HEREIN.
Section 15. Further Assurances. The parties agree to do, make, execute and
deliver all such additional and further acts, things, assurances and instruments
as any party may reasonably require to carry into effect the provisions and
intent of this Agreement, including such documents as may be reasonably
requested by any bank or banks which re-fund or refinance any of the Senior
Debt.
Section 16. Miscellaneous. This Agreement may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement, it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against which enforcement is sought. The Senior Bank may, in its sole and
absolute discretion, waive any provisions of this Agreement benefiting the
Senior Bank; provided, however, that such waiver shall be effective only if in
writing and signed by the Senior Bank and shall be limited to the specific
provision or provisions expressly so waived. This Agreement shall be binding
upon the respective successors and assigns of the Subordinated Creditor and the
Borrower and shall inure to the benefit of the Senior Bank, the Senior Bank's
respective successors and assigns, any bank refunding or refinancing any of the
Senior Debt and their respective successors and assigns, but shall not otherwise
create any rights or benefits for any third party. In the event that any lender
or lenders refund or refinance any of the Senior Debt, the terms "Loan
Agreement", "Bank Agreements", "Event of Default" and the like shall refer
mutatis mutandis to the agreements and instruments in favor of such lender or
lenders and to the related definitions contained therein.
[Signatures appear on following page]
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The Senior Bank:
BANK OF AMERICA, N.A.
(successor by merger to Fleet National Bank)
By: /s/ John F. Lynch
----------------------------------------
Name: John F. Lynch
Title: Senior Vice President
The Subordinated Creditor:
PATRIOT CAPITAL FUNDING, INC.
By: /s/ Richard P. Buckanavage
----------------------------------------
Name: Richard P. Buckanavage
Title: President
By: /s/ Timothy W. Hassler
----------------------------------------
Name: Timothy W. Hassler
Title: Chief Operating Officer
The Borrower:
DOVER SADDLERY, INC.
(a Massachusetts corporation)
By: /s/ Stephen L. Day
----------------------------------------
Name: Stephen L. Day
Title: President
[Signatures continue on next page]
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Acknowledged and Agreed:
DOVER SADDLERY, INC. (a Delaware
corporation)
By: /s/ Stephen L. Day
-----------------------------
Title: President
SMITH BROTHERS, INC.
By: /s/ Stephen L. Day
-----------------------------
Title: President
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