SIXTH AMENDMENT TO FIRST AMENDED, RESTATED, AND CONSOLIDATED LOAN AND SECURITY AGREEMENT
SIXTH
AMENDMENT TO
FIRST
AMENDED, RESTATED, AND CONSOLIDATED
This
SIXTH AMENDMENT TO FIRST AMENDED, RESTATED, AND CONSOLIDATED LOAN AND SECURITY
AGREEMENT (the “Amendment” or “Sixth Amendment”), dated as
of March 24, 2008, is entered into by and among the lenders party hereto (the
“Lenders”),
Xxxxx Fargo Retail Finance, LLC (as successor in interest to Xxxxx Fargo Retail
Finance II, LLC), a Delaware limited liability company, as Arranger and
Administrative Agent for the Lenders (the “Agent”), The Walking
Company, a Delaware corporation, and Big Dog USA, Inc., a California corporation
(individually and collectively, the “Borrowers”), and Big
Dog Holdings, Inc., a Delaware corporation (the “Parent”).
RECITALS
WHEREAS,
Borrowers, Parent, Agent and Lenders have executed and delivered that certain
First Amended, Restated, and Consolidated Loan and Security Agreement, dated as
of July 7, 2005, as amended by that certain First Amendment to the First
Amended, Restated, and Consolidated Loan and Security Agreement dated August 31,
2005, as amended by that certain Second Amendment to the First Amended, Restated
and Consolidated Loan and Security Agreement dated October 23, 2006, as amended
by that certain Third Amendment to the First Amended, Restated and Consolidated
Loan and Security Agreement dated as of November 28, 2006, as amended by that
certain Fourth Amendment to the First Amended, Restated and Consolidated Loan
and Security Agreement dated as of April 2, 2007, as amended by that certain
Fifth Amendment to the First Amended, Restated and Consolidated Loan and
Security Agreement dated as of May, 2007 (collectively, as such may be amended,
restated, supplemented and/or modified from time to time, hereafter, the “Loan
Agreement”);
WHEREAS,
the Parent and Borrowers have notified the Agent and Lenders that an Event of
Default has occurred under Section 8.2 of the Loan Agreement as a result of the
Borrowers' breaching the EBITDA covenant in violation of Section 7.21(a)(ii) of
the Loan Agreement for the fiscal month ended December 31, 2007 (the “Specified Event of
Default”);
WHEREAS,
the Parent and Borrowers have requested that the Agent and Lenders waive the
Specified Event of Default and agree to certain modifications of the Loan
Agreement as set forth herein; and
WHEREAS,
Agent and Lenders are willing to issue such waiver and agree to such
modifications, subject to and pursuant to the terms and conditions contained
herein.
NOW
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and upon the terms and conditions set forth
herein, the parties hereby agree as follows:
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1.
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RELATION
TO THE LOAN AGREEMENT;
DEFINITIONS.
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1.1. Relation to Loan
Documents. This Amendment constitutes an integral part of the Loan
Agreement and shall be deemed to be a Loan Document for all purposes. Upon the
effectiveness of this Amendment, on and after the date hereof each reference in
the Loan Agreement to “this Agreement,” “hereunder,” “hereof,” or words of like
import referring to the Loan Agreement, and each reference in the other Loan
Documents to “the Loan Agreement,” “thereunder,” “thereof” or words of like
import referring to the Loan Agreement, shall mean and be a reference to the
Loan Agreement as amended hereby.
1.2. Definitions. For all
purposes of this Amendment, capitalized terms used herein without definition
shall have the meanings specified in the Loan Agreement unless specifically
defined herein.
(a) New Definitions. The
following new definitions shall be added to the Loan
Agreement:
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(i)
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“Effective Date of the
Sixth Amendment” means the “Effective Date” as defined in that
certain Sixth Amendment to First Amended, Restated, and Consolidated Loan
and Security Agreement dated March 24, 2008, among Lenders, Agent,
Borrowers and Parent.
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(ii)
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“Specified Event of
Default” shall have the meaning set forth in the recitals to the
Sixth Amendment.
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2.
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AMENDMENT
TO THE LOAN DOCUMENTS.
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2.1 Capital Expenditures.
Pursuant to Section 7.21(a)(i) of the Loan Agreement, so long as the Obligations
remain outstanding, the Agent in its Permitted Discretion may establish the
permissible level of Capital Expenditures for each of Borrowers' Fiscal Years.
Effective for the 2008 Fiscal Year, the Borrowers shall not make capital
expenditures, measured on a consolidated basis in excess of Thirteen Million
Five Hundred Thousand Dollars ($13,500,000) (inclusive of any tenant allowances)
for the 2008 fiscal year.
2.2 Amendment to EBITDA
Covenant. Effective with respect to the fiscal month ended January, 2008,
the Borrowers shall be required to achieve the following EBITDA levels
cumulative from January 1, 2008 through the last day of the applicable months
set forth below rather than the required amount of EBITDA on any prior charts
for this period incorporated in Section 7.2l(a)(ii).
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Applicable
Period (month ending)
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Required
Cumulative EBITDA Amount
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January,
2008
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$ | (3,500 | ) | |
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February,
2008
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$ | (6,000 | ) | |
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March,
2008
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$ | (7,250 | ) | |
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Applicable
Period (month ending)
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Required
Cumulative EBITDA
Amount
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April,
2008
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$ | (7,750 | ) | |
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May,
2008
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$ | (7,750 | ) | |
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June,
2008
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$ | (6,750 | ) | |
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July,
2008
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$ | (5,800 | ) | |
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August,
2008
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$ | (5,200 | ) | |
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September,
2008
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$ | (4,800 | ) | |
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October,
2008
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$ | (4,000 | ) | |
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November,
2008
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$ | (1,800 | ) | |
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December,
2008
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$ | 5,000 | ||
In the
event that Borrowers fail to achieve the minimum EBITDA level required under the
above chart for any period, the Agent shall not declare an Event of Default to
have occurred solely on account of such failure for a period of five (5)
Business Days after their receipt of the financial statements from Borrowers
demonstrating such failure or if such financial statements are not delivered by
the Borrowers on the date when due hereunder, written five (5) Business Days of
the date when due; provided, however, that the foregoing shall not prohibit the
Agent from declaring an Event of Default based on any other circumstance or
event which may then exist. If, prior to the end of such five (5) Business Day
period, the Borrowers receive new capital contributions or proceeds of newly
issued Subordinated Indebtedness, the amount of the minimum EBITDA required to
have been achieved during the applicable testing period and all future
applicable testing periods for the remainder of the then current calendar year
shall be deemed reduced dollar for dollar by the amount of the proceeds of such
capital contributions or Subordinated Indebtedness received by the Borrowers for
purposes of determining whether the required minimum level of EBITDA was
achieved during each such testing period.
3. LIMITED
WAIVER. Agent and Lenders hereby waive the Specified
Event of Default effective as of the Effective Date of the Sixth Amendment,
subject to the following:
(a) The
waiver of the Specified Event of Default is a one-time waiver with respect to
the Specified Event of Default in existence as of the date hereof with respect
to the fiscal month ended December 31, 2007, and shall not be deemed to
constitute a waiver with respect to any other similar circumstance, nor a waiver
of any other Event of Default, whether now existing or hereafter arising,
including without limitation, on account of the breach of any other provision of
the Agreement.
(b) The
limited waiver granted herein is made in reliance upon the representations,
warranties, acknowledgements, and agreements of the Borrowers and Parent set
forth herein.
4. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers and Parent
hereby affirms to Agent and Lenders that all of its representations and
warranties set forth in the
Loan Agreement are true, complete and accurate in all respects as of the date
hereof. Additionally,
each of the Borrowers and Parent represents and warrants to Agent and Lenders
the following:
(a) Legally Enforceable
Agreement. This Amendment is a legal, valid and binding obligation of the
Borrowers and Parent enforceable against the Borrowers and Parent in accordance
with its terms.
(b) No Defaults. No
Events of Default have occurred and are continuing as of the date hereof except
for the Specified Event of Default.
5. RELEASE. In consideration of
Agent and Lenders entering into this Amendment, each of the Borrowers and Parent
hereby releases and forever discharges Agent and Lenders, and its successors,
assigns, agents, shareholders, directors, officers, employees, agents,
attorneys, parent corporations, subsidiary corporations, affiliated
corporations, affiliates, and each of them, from any and all claims, debts,
Obligations, demands, obligations, costs, expenses, actions and causes of
action, of every nature and description, known and unknown, whether or not
related to the subject matter of this Amendment or the other Loan Documents,
which Borrowers or Parent now have or at any time may have held, by reason of
any matter, cause or thing occurred, done, omitted or suffered to be done prior
to the date of this Amendment. This release is fully effective on the date
hereof. Agent and Lenders are not releasing Borrowers and Parent from any
claims, debts, Obligations, demands, obligations, costs, expenses, actions or
causes of action.
6. CONDITIONS PRECEDENT. The
effective date of this Amendment (the “Effective Date”)
shall occur upon the receipt by Agent of (i) an executed copy of this Amendment
by all parties hereto and (ii) any other documents executed in connection
therewith.
7. COSTS AND EXPENSES. Borrowers
shall pay to Agent all of Agent's out-of-pocket costs and expenses (including,
without limitation, the fees and expenses of its counsel, which counsel may
include any local counsel deemed necessary, search fees, filing and recording
fees, documentation fees, appraisal fees, travel expenses; and other fees)
arising in connection with the preparation, execution, and delivery of this
Amendment and all related documents. Agent shall be authorized to charge the
Loan Account with such fees and expenses.
8. MISCELLANEOUS. Each of the
Borrowers and Parent confirms that the Loan Agreement and other Loan Documents
remain in full force and effect without amendment or modification of any kind,
except as expressly set forth in this Amendment. This Amendment shall be deemed
to be a Loan Document and, together with the other Loan Documents, constitute
the entire agreement between the parties with respect to the subject matter
hereof and supersede all prior dealings, correspondence, conversations or
communications between the parties with respect to the subject matter
hereof.
9. ACKNOWLEDGMENT
OF OBLIGATIONS. Each of the
Borrowers and Parent hereby acknowledges and agrees that it is unconditionally
liable to the Agent and Lenders for the full and timely payment of each of the
Obligations under the Loan Agreement and the other Loan Documents plus all charges,
fees, costs, and expenses that may arise under the Loan Agreement and other Loan
Documents plus
all attorneys' fees, disbursements and costs of collection incurred in
connection with such Obligations by Agent and Lenders. Each of the Borrowers and
Parent acknowledges and agrees that it does not have any defenses, counterclaims
or set-offs with respect to the full and timely payment and performance of any
or all Obligations under the Loan Documents.
10. LIMITED EFFECT. In the event
of a conflict between the terms and provisions of this Amendment and the terms
and provisions of the Loan Agreement and the other Loan Documents, the terms and
provisions of this Amendment shall govern. In all other respects, the Loan
Agreement and other Loan Documents, as amended and supplemented hereby, shall
remain in full force and effect.
11. COUNTERPARTS. This Amendment
may be executed in any number of counterparts and by different parties on
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original. All such counterparts, taken together, shall
constitute but one and the same Amendment.
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed and delivered as of the
date first above written.
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BIG
DOG HOLDINGS, INC., a Delaware corporation, as Parent
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Title:
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CFO
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BIG
DOG USA, INC.,
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California
corporation, as a Borrower
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Title:
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CFO
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THE
WALKING COMPANY,
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Delaware
corporation, as a Borrower
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Title:
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CFO
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XXXXX
FARGO RETAIL FINANCE, LLC,
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a
Delaware limited liability company, as Agent and as a
Lender
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By:
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Title:
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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to he executed and delivered as of the
date first above written.
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BIG
DOG HOLDINGS, INC., a Delaware corporation, as Parent
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By:
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Title:
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BIG
DOG USA, INC.,
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California
corporation, as a Borrower
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By:
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Title:
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THE
WALKING COMPANY,
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Delaware
corporation, as a Borrower
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By:
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Title:
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XXXXX
FARGO RETAIL FINANCE, LLC,
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a
Delaware limited liability company, as Agent and as a
Lender
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By:
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illegible
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Title:
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Senior
Vice President
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