Exhibit 10.17
SUBORDINATION AGREEMENT
SUBORDINATION AGREEMENT (this "AGREEMENT"), dated as of September 17,
1998, among (i) BANKBOSTON, N.A., a national banking association having its head
office at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, (the "Bank"), (ii) CITIZENS
CAPITAL, INC., a Massachusetts corporation having a principal place of business
at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 ("Citizens") and CITIZENS VENTURES,
INCORPORATED, a Massachusetts corporation having its principal place of business
at 00 Xxxxx Xxxxxx, Xxxxxx, XX, 00000 (and together with Citizens, the
"Subordinating Creditors"), and (iii) DOVER SADDLERY, INC., a Delaware
corporation having its principal place of business at 00 Xxxx Xxxx, Xxxxxxxxx,
XX 00000 ("Holdings") and DOVER SADDLERY, INC" a Massachusetts corporation
having its principal place of business at 00 Xxxx Xxxx, Xxxxxxxxx, XX 00000
("Dover"; and together with Holdings, the "Borrower").
WHEREAS, pursuant to a Loan Agreement, dated as of September 17, 1998 (as
amended and in effect from time to time, including any replacement agreement
therefor, in each case, in accordance with the terms of this Agreement, the
"Credit Agreement"), between the Bank and Dover, the Bank has agreed, upon the
terms and subject to the conditions contained therein, to make loans and
otherwise to extend credit to Dover, and Holdings has agreed to guaranty to the
Bank the Obligations of Dover under (and as defined in) the Credit Agreement;
and
WHEREAS, the Subordinating Creditors have extended or agreed to extend
credit to the Borrower and Holdings has agreed to issue certain equity to the
Subordinating Creditors pursuant to those certain Securities Purchase
Agreements, dated September 17, 1998 (collectively, as amended and in effect
from time to time, in each case, in accordance with the terms of this Agreement,
the "Subordinated Agreements"), between each of the respective Subordinating
Creditors and the Borrower; and
WHEREAS, it is a condition precedent to the Bank's willingness to make
loans and otherwise to extend credit to the Borrower pursuant to the Credit
Agreement that the Borrower and the Subordinating Creditors enter into this
Agreement with the Bank; and
WHEREAS, in order to induce the Bank to make loans and otherwise extend
credit to the Borrower pursuant to the Credit Agreement, the Borrower and the
Subordinating Creditors have agreed to enter into this Agreement with the Bank;
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:
1. Definitions. Terms not otherwise defined herein have the same
respective meanings given to them in the Credit Agreement, as in effect on the
date hereof. In addition, the following terms shall have the following meanings:
Senior Debt. All principal, interest, fees, costs, enforcement expenses
(including legal fees and disbursements), collateral protection expenses and
other reimbursement or indemnity obligations created or evidenced by the Credit
Agreement or any of the other Loan Documents (including, without limitation, all
Obligations under and as defined in the Credit Agreement) and any prior,
concurrent, or subsequent notes, instruments or agreements of indebtedness,
liabilities or obligations of any type or form whatsoever relating thereto in
favor of the Bank, provided that the aggregate principal amount thereof
(including amounts (other than costs, expenses, fees and additional interest)
owing to the Bank under any hedge agreements entered into by the Borrower with
the Bank) shall not exceed $14,750,000 at any time outstanding (the "Senior Debt
Limits"). Senior Debt shall expressly include (i} subject to the Senior Debt
Limits, any refinancing or refunding of the Senior Debt as described in the
immediately preceding sentence, provided that no term or provision thereof
would, if contained in an amendment to the Credit Agreement, be in contravention
of Section 9 hereof and (ii) any and all interest accruing or out of pocket
costs or expenses incurred after the date of any filing by or against the
Borrower of any petition under the federal Bankruptcy Code or any other
bankruptcy, insolvency or reorganization act regardless of whether the Bank's
claim therefor is allowed or allowable in the case or proceeding relating
thereto.
Subordinated Debt. All principal, interest, fees, costs, enforcement
expenses (including legal fees and disbursements), collateral protection
expenses and other reimbursement and indemnity obligations, "put" and "call"
rights, redemption rights, rights to any liquidation preference, and any other
charges or amounts created or evidenced by the Subordinated Documents or any
prior, concurrent or subsequent notes, instruments or agreements of
indebtedness, liabilities or obligations of any type or form whatsoever relating
thereto in favor of either of the Subordinating Creditors.
Subordinated Documents. Collectively, the Subordinated Agreements, any
promissory notes or other instruments and documents executed in connection
therewith and any and all guaranties and security interest, mortgages and other
liens directly or indirectly guarantying or securing any indebtedness of the
Borrower to the Subordinating Creditors under any of the foregoing, whether now
existing or hereafter created.
2. No Payment on Subordinated Debt in Certain Circumstances.
2.1 General. Notwithstanding the provisions of any Subordinated
Document, the Subordinated Debt and any and all Subordinated Documents shall be
and hereby are subordinated and the payment thereof (whether directly or
indirectly by cash, property or securities, by set-off, redemption or otherwise)
is deferred until the full and final payment in cash of the Senior Debt, whether
now or hereafter incurred or owed by the Borrower. Notwithstanding the
immediately preceding sentence, the Borrower shall be permitted to pay, and the
Subordinating Creditors shall be permitted to receive, any costs and expenses
required to be reimbursed or paid by the Borrower to the
Subordinating Creditors not to exceed $50,000 in the aggregate in any fiscal
year of the Borrower, and any regularly scheduled payment of interest on the
Subordinated Debt (as set forth in the Subordinated Agreement as in effect on
the date hereof or as amended as expressly permitted by Section 9), in each case
subject to Sections 2.2, 2.3 and 2.4 and the other terms and provisions of
this Agreement.
2.2 Postponement Period. Upon receipt by the Borrower and the
Subordinating Creditors of a notice of an Event of Default arising under any of
the Loan Documents (and which notice shall specify that it is a Default Notice
(as hereinafter defined) delivered pursuant to this Section 2.2), no payment of
any kind shall be made by the Borrower on the Subordinated Debt (x) in case of
any payment default under the Senior Debt, for a period commencing on the date
such Default Notice is received (or deemed received, as provided below) by the
Borrower and the Subordinating Creditors and continuing until the Senior Debt
has been paid in full in cash or such payment default has been cured to the
satisfaction of the Bank (which the Bank has acknowledged in writing) or waived
by the Bank in writing, and (y) subject to the provisions of Section 6 hereof,
with respect to any other Event of Default under the Credit Agreement, for a
period of 180 days following receipt of such notice by the Borrower and the
Subordinating Creditors (such notice being herein call a "Default Notice" and
any such period during which the Subordinated Debt is prohibited from being paid
under clauses (x) or (y) of this Section 2.2 being herein called a "Postponement
Period"). A Default Notice shall set forth all Events of Default known to the
Bank as of the date of such notice. For all purposes of this Agreement, in the
case of a payment default under the Credit Agreement, the Bank shall be deemed
to have sent a Default Notice to the Subordinating Creditors, and the
Subordinating Creditors shall be deemed to have received such Default. Notice,
on the date upon which the applicable payment default shall have occurred under
the Credit Agreement. Whether or not a Postponement Period shall be in effect,
in the event that the Senior Debt shall have been accelerated in accordance with
its terms and so long as such acceleration shall not have been rescinded, no
payment or distribution of any kind shall be made on, or in respect of, any
Subordinated Debt and no Subordinating Creditor shall receive or accept any of
the foregoing.
2.3 Resumption of Payments. Following the commencement of a
Postponement Period, so long as at the time of any payment the Senior Debt shall
not have been accelerated, the Borrower may pay and the Subordinating Creditors
shall be entitled to receive and retain any sums expressly permitted to be paid
by the Borrower pursuant to Section 2.l on the earliest to occur of (x) the
expiration of the Postponement Period, (y) the date on-which all Events of
Default described in such Default Notice have been cured to the satisfaction of
the Bank (which the Bank has acknowledged in writing) or waived by the Bank in
writing or (z) final payment being made in full in cash of all of the Senior
Debt; and provided, further, that upon the earliest to occur of (x), (y) or (z)
above, the Borrower shall be permitted to make all payments permitted pursuant
to Section 2.1 whether current or past due (subject to any grace or cure
periods) to the Subordinating Creditors and shall resume all other required
payment obligations under the Subordinated Documents (which in any event, except
after the occurrence of (z) above, shall not include any accelerated payments).
Payment by the Borrower to the Subordinating Creditors after the Postponement
Period of all amounts due and owing to the Subordinated Creditors during the
Postponement Period shall be deemed a cure of any default caused by such delayed
payment under the Subordinated Documents. For the purposes of clarification and
subject to the Subordinating Creditors' obligations under Section 3 to rescind
their acceleration under certain circumstances, if the Subordinating Creditors
shall have accelerated the Subordinated Debt and such acceleration shall not
have been prohibited by the terms of this Agreement, payment by the Borrower to
the Subordinating Creditors after a Postponement Period of all amounts due and
owing to the Subordinating Creditors during such Postponement Period other than
all accelerated amounts, shall not be deemed to cure the default or event of
default arising by virtue of having failed to pay the accelerated amounts.
2.4. Subsequent Postponement Periods. For purposes of this Section
2, (i) the Postponement Periods arising as a result of an Event of Default in
payment of any Senior Debt shall be unlimited in number and duration and (ii)
the aggregate of all Postponement Periods as a result of any other Events of
Default, in each 365-day period, shall not exceed four (4) in number and shall
not exceed 180 days. No Default Notice may be based on an Event of Default which
was in existence as of the time of the issuance of any earlier Default Notice
and specified therein unless such Event of Default shall have been cured and is
subsequently determined to be a new Event of Default.
3. Enforcement. The Subordinating Creditors shall not make any declaration
that all or any portion of the unpaid principal amount of the Subordinated Debt
be due and payable prior to its stated maturity or take any action to foreclose
or realize upon the Subordinated Debt or any part thereof or enforce any right
of redemption, reimbursement, restitution, contribution or indemnity whatsoever
or any other payment obligation under any of the Subordinated Documents or
initiate any judicial action against the Borrower (each an "Enforcement
Action"), provided that the Subordinating Creditors, (i) may commence
Enforcement Actions (other than with respect to initiating the filing of a
petition for relief under the Bankruptcy Code) against the Borrower 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, (ii) (A)
in the case of a payment default under the Senior Debt, may commence Enforcement
Actions against the Borrower (other than with respect to initiating the filing
of a petition for relief under the Bankruptcy Code), upon the earliest to occur
of (x) two hundred and seventy (270) days after the receipt (or deemed receipt)
or, if one or more payments to the Subordinating Creditors have been blocked,
the deemed receipt, by the Subordinating Creditors of a Default Notice relating
thereto, (y) the payment in full in cash of the Senior Debt, or (z) the
acceleration of the Senior Debt or the Senior Debt has become due and payable in
accordance with its terms, if an event of default has occurred and is continuing
under the Subordinated Agreements, (B) in the case of a financial covenant or
financial reporting default under the Senior Debt, may commence Enforcement
Actions against the Borrower (other than with respect to initiating the filing
of a petition for relief under the Bankruptcy Code), upon the earliest to occur
of (x) two hundred and ten (210) days after the receipt by the Subordinating
Creditors of a Default Notice relating thereto, (y) the payment in full in cash
of the Senior Debt, and (z) the acceleration of the Senior Debt or the Senior
Debt has become due and payable in accordance with its terms, if an event of
default has occurred and is continuing under the Subordinated Agreements, and
(C) in the case of any default other than a default described in clauses,
(ii)(A) or (ii)(B) above, may commence Enforcement Actions against the Borrower
(other than with respect to initiating the filing of a petition for relief under
the Bankruptcy Code), upon the earliest to occur of (x) one hundred and eighty
(180) days after the receipt by the Subordinating Creditors of a Default Notice
relating thereto, (y) the payment in full in cash of the Senior Debt, and (z)
the acceleration of the Senior Debt or the Senior Debt has become due and
payable in accordance with its terms, if an event of default has occurred and is
continuing under the Subordinated Agreements, provided that with respect to the
prohibitions on Enforcement Actions contained in this clause (ii), the
Subordinating Creditors shall not be prohibited from taking such Enforcement
Actions for an aggregate of more than two hundred and seventy (270) days in each
three hundred and sixty-five (365) day period, but provided further that such
Enforcement Actions shall not include-initiating the filing of a petition by the
Borrower for relief under the Bankruptcy Code, which the Subordinating Creditors
may only do in accordance with the provisions of the next paragraph of this
Section 3, (iii) as a result of a filing by the Borrower or against the Borrower
by persons other than the Subordinating Creditors for relief under the federal
Bankruptcy Code, or any other bankruptcy, reorganization or insolvency law, may
be deemed to automatically have accelerated the Subordinated Debt (but not with
respect to the filing of a petition for relief under the Bankruptcy Code at the
initiation of the Subordinating Creditors) and (iv) to the
extent not previously covered in clause (ii) above, may commence Enforcement
Actions (other than with respect to initiating the filing of a petition for
relief under the Bankruptcy Code) one hundred and eighty (180) days after the
Bank has received written notice from the Subordinating Creditors that there has
occurred an event of default or breach by the Borrower giving rise to any. so
called "put" rights or redemption right under the Subordinated Debt.
Notwithstanding any provision of any instrument evidencing any Subordinated Debt
or any other provisions contained in this Agreement to the contrary, no
Subordinating Creditor shall have any right to accelerate or declare a default
under any Subordinated Debt, unless the Subordinating Creditors shall have the
right to accelerate the Subordinated Debt based upon a default or event of
default under the Subordinated Agreements notwithstanding that the event, act,
omission, occurrence or circumstance giving rise to such default or event of
default may also constitute a Default or Event of Default under the Senior Debt.
For the purposes of clarification, the Subordinated Documents may not contain a
default provision based upon a Default or Event of Default under the Credit
Agreement, but may contain a default provision based upon acceleration of the
Senior Debt, it being agreed by the Subordinating Creditors that any Enforcement
Action initiated by them based solely on such acceleration of the Senior Debt
shall be rescinded immediately upon the Bank rescinding such acceleration. The
Subordinating Creditors will provide the Bank with copies of any notice of
default, event of default, breach or acceleration under the Subordinated
Documents-simultaneously with the giving of any such notice to Borrower and the
Bank will provide the Subordinating Creditors with copies of any notice of
default, event of default or acceleration under the Senior Debt simultaneously
with the giving of any such notice to the Borrower, provided that the failure to
give any such notice shall not affect the respective rights and obligations of
the parties hereunder, provided, however that if at any time the Subordinating
Creditors receive or accept a payment under the Subordinated Debt when they know
that a default, event of default or breach exists under the Subordinated
Documents and they have not given written notice of such default, event of
default or breach to the Bank, the Subordinating Creditors shall promptly notify
the Bank thereof in writing and the Bank shall have a period of thirty (30) days
after receipt of such notice to request that such payment received by the
Subordinating Creditors be paid over to the Bank for application to the Senior
Debt. The Subordinating Creditors 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.
Notwithstanding the provisions of the foregoing paragraph with respect to
the prohibition on the Subordinating Creditors from initiating the filing by the
Borrower of a petition for relief under the Bankruptcy Code, the Subordinating
Creditors may initiate the filing by the Borrower of a petition for relief under
the Bankruptcy Code four hundred and fifty-five (455) days after the Bank has
received written notice from the Subordinating Creditors that they intend to
initiate such a filing, provided that at the time such notice is given, (i) a
ripened payment or financial covenant default exists under the Subordinated
Debt, and (ii) such default is continuing at the time such filing is initiated
by the Subordinating Creditors.
Until the Senior Debt has been finally paid in full in cash, the
Subordinating Creditors shall not exercise any right of subrogation from any
assets of the Borrower or any guarantor of or provider of collateral security
for the Senior Debt (which right the Subordinating Creditors may assert
following such final payment in full). For purposes of such subrogation, no
payments or distributions to the holders of Senior Debt of any cash, property or
securities to which the Subordinating Creditors would be entitled except for the
provisions of this Agreement, and no payment over pursuant to the provisions of
this Agreement to the holders of Senior Debt by or for the account of the
Subordinating Creditors shall, as among the Borrower and its creditors (other
than holders of Senior Debt and the Subordinating Creditors) be deemed to be a
payment or distribution by the Borrower to or on account of the Senior Debt.
Each of the Subordinating Creditors further waives any and all rights with
respect to marshaling.
4. Payments Held in Trust. Each of the Subordinating Creditors will hold
in trust and immediately pay over to the Bank, in the same form of payment
received, with appropriate endorsements, for application to the Senior Debt any
cash amount that the Borrower pays to the Subordinating Creditors with respect
to the Subordinated Debt, or as collateral for the Senior Debt any other assets
of the Borrower that the Subordinating Creditors may receive with respect to the
Subordinated Debt, in each case except with respect to payments expressly
permitted pursuant to Section 2.
5. Defense to Enforcement. If the Subordinating Creditors, in
contravention of the terms of this Agreement; shall commence, prosecute or
participate in any suit, action or proceeding against the Borrower, then the
Bank may intervene and interpose as a defense or plea in its name or in the name
of the Borrower the making of this Agreement, and provided that prior to the
commencement or initiation of prosecution or participation in any such suit,
action or proceeding, the Bank shall have received written notice thereof from
the Subordinating Creditors, the Borrower may not interpose such defense or
plea. Each of the Subordinating Creditors hereby agrees (i) that in any suit,
action or proceeding described in the preceding sentence, the Bank shall have an
interest relating to such suit, action or proceeding and such suit, action or
proceeding would impair or impede the Bank's ability to protect such interest
and (ii) in any such suit, action or proceeding, the Borrower would not be in a
position to adequately represent the interest of the Bank. If either of the
Subordinating Creditors, 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 Bank may, by virtue of this Agreement, restrain
the enforcement thereof in the name of the Bank or in the name of the Borrower.
If either of the Subordinating Creditors, in contravention of the terms of this
Agreement, obtains any cash or other assets of the Borrower as a result of any
administrative, legal or equitable actions, or otherwise, each of the
Subordinating Creditors agrees forthwith to pay, deliver and assign to the Bank,
for the account of the Banks and the Bank, with appropriate endorsements, any
such cash for application to the Senior Debt and any such other assets as
collateral for the Senior Debt.
6. Bankruptcy. etc.
6.1. Payments relating to Subordinated Debt. At any meeting of
creditors of the Borrower for the distribution, division or application of all
or part of the assets of the Borrower or the proceeds thereof, or in the event
of any case or proceeding, voluntary or involuntary, for the distribution,
division or application of all or part of the assets of the Borrower or the
proceeds thereof, whether such case or proceeding be for the liquidation,
dissolution or winding up of the Borrower or its- business, a receivership,
insolvency or bankruptcy case or proceeding, an assignment for the benefit of
creditors or a proceeding by or against the Borrower for relief under the
federal Bankruptcy Code or any other bankruptcy, reorganization or insolvency
law or any other law relating to the relief of debtors, readjustment of
indebtedness, reorganization, arrangement, composition or extension or
marshaling of assets or otherwise, the Bank is hereby irrevocably authorized at
any such meeting or in any such proceeding to receive or collect any cash or
other assets of the Borrower distributed, divided or applied by way of dividend
or payment, or any securities issued on account of any Subordinated Debt, and
apply such cash to the Senior Debt or to hold such other assets or securities as
collateral for the Senior Debt which has accrued or is contingent, and to apply
to the Senior Debt any cash proceeds of any realization upon such other assets
or securities that the Bank in
its discretion elects to effect, until all of the Senior Debt shall have been
paid in full in cash, rendering any surplus to such persons as the Bankruptcy
Court directs.
6.2. Securities by Plan of Reorganization or Readjustment.
Notwithstanding the foregoing provisions of Section 6.1, the Subordinating
Creditors shall be entitled to receive and retain any securities of the Borrower
or any other corporation or other entity (including capital stock) provided for
by a plan of reorganization or readjustment the payment of which securities is
subordinate (including any redemption, repurchase or retirement of, or
distribution with respect to, any stock), at least to the extent provided in
this Agreement with respect to Subordinated Debt, to the payment of all Senior
Debt under any such plan of reorganization or readjustment.
6.3. Subordinated Debt Voting Rights. At any such meeting of
creditors or in the event of any such case or proceeding, the Subordinating
Creditors shall retain the right to vote and otherwise act with respect to the
Subordinated Debt (including, without limitation, the right to 'Vote to accept
or reject any plan of partial or complete liquidation, reorganization,
arrangement, composition or extension), provided that the Subordinating
Creditors shall not vote with respect to any such plan or take any other action
in any way so as to contest (i) the validity of any Senior Debt or any
collateral therefor or guaranties thereof, (ii) 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 or (iii) the Subordinating Creditors' obligations and
agreements set forth in this Agreement.
7. Security. Each of the Subordinating Creditors hereby acknowledges and
agrees that the Subordinated Debt is, and at all times during the term of this
Agreement shall be, unsecured, except that the Subordinating Creditors may be
named as loss payee on up to $2,000,000 of key man life insurance held by the
Borrower, and no payment of the proceeds thereof to the Subordinating Creditors
shall be subject to the terms of this Agreement.
8. Further Agreements of Subordinating Creditor. .
8.1. Further Assurances. Each of the Subordinating Creditors hereby
agrees, upon request of the Bank at any time and from time to time, to execute
such other documents or instruments as may be reasonable requested by the Bank
further to evidence of public record or otherwise the senior priority of the
Senior Debt as contemplated hereby. In addition, the Subordinating Creditors
agree that they will consent to an amendment to the Certificate of Incorporation
of Holdings (as amended, the "Certificate of Incorporation"), to be filed
promptly after the closing under the Credit Agreement, containing language
substantially as set forth in Annex 1 hereto, and the Subordinating Creditors
agree that, notwithstanding Section 6.2 of the Certificate of Incorporation or
any other provision thereof, the consent of one or more of the Subordinating
Creditors shall not be required in order for the Bank to foreclose on the stock
of Holdings pledged to it or to sell such stock to any third .party upon the
Bank's foreclosure of such stock.
8.2. Books and Records. Each of the Subordinating Creditors further
agrees to maintain on its books and records such notations as the Bank may
reasonably request to reflect the subordination contemplated hereby.
8.3. Legend. Any promissory note or other debt or equity instrument
evidencing the Subordinated Debt issued by the Borrower to the Subordinating
Creditors shall contain a legend, in form and substance satisfactory to the
Bank, stating that the Subordinated Debt is
subordinate and subject to the terms of this Agreement.
9. Bank's Freedom of Dealing. Each of the Subordinating Creditors agrees,
with respect to the Senior Debt and any and all collateral therefor or
guaranties thereof, that the Borrower and the Bank may agree to increase the
amount of the Senior Debt up to the Senior Debt Limits, or otherwise modify the
terms of any of the Senior Debt (so long as the Bank shall not add any
additional restriction on the payment of Subordinated Debt to that contained in
the Credit Agreement as in effect on the date hereof and shall not amend in a
manner adverse to the Subordinating Creditors the restrictions on the payment of
Subordinated Debt contained in the Credit Agreement as in effect on the date
hereof), and the Bank may grant extensions of the time of payment or performance
(provided that so long as no Postponement Period that has commenced before
September 17,2005 shall be in effect on the date of payment, upon or after
September 17 , 2005 the Borrower shall be permitted to pay and the Subordinating
Creditors shall be permitted to receive all amounts due and payable under the
Subordinated Debt (as defined in the Subordinated Agreement) and the
Subordinated Agreement), 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 Subordinating Creditors or the Borrower and
without affecting the agreements of the Subordinating Creditors or the Borrower
contained in this Agreement. Notwithstanding the foregoing, nothing contained in
this Section 9 shall constitute a waiver of the right of the Borrower itself to
agree or consent to a settlement or compromise of a claim which the Bank may
have against the Borrower.
10. Modification or Sale of the Subordinated Debt. The Subordinating
Creditors will not, at any time while this Agreement is in effect, (i) without
the prior written consent of Bank, agree to any amendment, modification or
supplement to the Subordinated Debt or any of the Subordinated Documents, the
effect of which is to (a) increase the principal amount of the Subordinated Debt
or rate of interest on any of the Subordinated Debt (it being understood that
invoking a default or overdue rate set forth in the Subordinated Documents shall
not be restricted hereunder, provided that its payment is subject to the terms
of this Agreement), (b) accelerate the dates upon which payments on or
redemptions of Subordinated Debt are due, (c) add or make more burdensome any
event of default or any covenant with respect to the Subordinated Debt, (d) make
more burdensome the redemption or prepayment provisions of the Subordinated
Debt, (e) change or amend any other term of the Subordinated Documents if such
change or amendment would increase in any material respect the obligations of
the Borrower or confer additional material rights on any of the Subordinating
Creditors or any other holder of the Subordinated Debt or would be in any manner
adverse to the holders of Senior Debt, or (f) take any liens or security
interests in any assets of the Borrower or its Subsidiaries or any other assets
securing the Senior Debt, or (ii) sell, transfer, pledge, assign, hypothecate or
otherwise dispose of any or all of the Subordinated Debt to any person other
than a person who agrees in a writing, reasonably satisfactory in form and
substance to the Bank, to become a party hereto and to be bound by all of the
obligations of the Subordinating Creditors hereunder. In the case of any such
disposition by the Subordinating Creditors, the Subordinating Creditors will
notify the Bank at least fifteen (15) days prior to the date of any such
intended disposition.
11. Borrower's Obligations Absolute. Nothing contained in this Agreement
shall impair, as between the Borrower and the Subordinating Creditors, the
obligation of the Borrower to pay to the Subordinating Creditors 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, or prevent the
Subordinating Creditors (except as expressly otherwise provided in
Sections 2, 3 or 6) from exercising all rights, powers and remedies
otherwise permitted by Subordinated Documents and by applicable law upon default
in the payment or performance of the Subordinated Debt or under any Subordinated
Documents, all however, subject to the rights of the Bank as set forth in this
Agreement.
12. Consent to Senior Debt. Notwithstanding any provision of the
Subordinated
Agreement, or this Agreement to the contrary, each of the Subordinating Creditor
hereby consents to the incurrence by the Borrower of the Senior Debt up to the
Senior Debt Limits and the terms thereof as in effect on the date hereof and as
amended in accordance with the terms of Section 9.
13. Termination of Subordination. This Agreement shall continue in full
force and effect, and the obligations and agreements of the Subordinating
Creditors and the Borrower 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 avoidable; provided,
however, upon payment and satisfaction in full in cash of the Senior Debt, the
Borrower shall be permitted to pay and the Subordinated Creditors shall be
permitted to receive any payments with respect to the Subordinated Debt. In the
event that the Borrower 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 (such payment being hereinafter referred to as a "Voided
Payment"), (i) 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 and (ii) a Postponement Period shall be deemed to have existed
and to be continuing under this Agreement from the date of such invalidation,
declaration, set aside or repayment of such payment on Senior Debt until the
full amount of such Voided Payment is restored to the Bank and this Agreement
shall be in full force and effect and apply thereto. Upon the payment and
satisfaction in full in cash of all of the Senior Debt, which payment shall be
final and not avoidable, this Agreement will automatically terminate without any
additional action by any party hereto (subject to any reinstatement as provided
in this Section 13).
14. 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 given in writing or
telecopied, delivered or mailed by registered or certified mail, postage
prepaid, as follows:
If to the Bank: BankBoston, N .A.
000 Xxxxxxx Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Director
Telecopy: (000) 000-0000
with a copy (which: Xxxxxx X. Xxxxxx, Esq.
shall not constitute Goulston & Storrs
notice) to: 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
If to the Subordinating Citizens Capital, Inc.
Creditors: 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Managing Director
Telecopy: (000) 000-0000
Citizens Ventures, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Managing Director
Telecopy: (000) 000-0000
with a copy (which: W. Xxxxxxxx Xxx, Esq.
shall not constitute Xxxxxx, Hall & Xxxxxxx Exchange Place
notice) to: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
If to the Borrower: Dover Saddlery, Inc.
00 Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Day, President
Telecopy: (000) 000-0000
or such other address or addresses as any party hereto shall 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 third day
following deposit thereof in the U.S. mail or (ii) receipt by the party to whom
such notice is directed.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE
LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW) AND SHALL BE A SEALED INSTRUMENT
UNDER SUCH LAW. EACH OF THE SUBORDINATING CREDITORS, THE BANK, AND THE BORROWER
AGREES THAT ANY SUIT FOR ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE
SUBORDINATED DEBT DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEAL TH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURTS AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON ANY OF THE PARTIES HERETO, AS APPLICABLE, BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION 14.
16. Waiver of Jury Trial. EACH OF THE SUBORDINATING CREDITORS, THE BANK
AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH OF THE SUBORDINATING CREDITORS,
THE BANK AND THE BORROWER 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 DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH OF THE SUBORDINATING CREDITORS, THE BANK
AND THE BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
17. 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 bean 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 Bank, may, in its sole and absolute discretion, waive
any provisions of this Agreement benefiting the Bank; provided, however, that
such waiver shall be effective only if in writing and signed by the Bank and
shall be limited to the specific provision or provisions expressly so waived. No
waiver on the part of any Subordinating Creditor of any provision of this
Agreement shall be effective unless in writing and signed on behalf of such
Subordinating Creditor. This Agreement shall be binding upon the successors and
assigns of each of the Subordinating Creditors, the Bank, and the Borrower and
shall insure to the benefit of the Subordinating Creditors and the Bank, and
their respective successor and assigns, and in the event that any lender or
lenders refund or refinance any of the Senior Debt in accordance with Section 9,
such lender or lenders 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 in
accordance with Section 9 the terms "Credit Agreement", "Loan Documents", "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.
18. No Benefit to Borrower. The Borrower is not a beneficiary of any
portion of this Agreement and shall not have any rights arising under this
Agreement or the right to enforce any provision hereof (except as provided in
Section 5).
(SIGNATURES ON NEXT PAGE)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BANK: BANKBOSTON, N.A., As Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
SUBORDINATING CREDITORS: CITIZENS CAPITAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
CITIZENS VENTURES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
BORROWER: DOVER SADDLERY, INC.
By: /s/ Xxxxxxx X. Day
---------------------------
Name: Xxxxxxx X. Day
Title: President
. COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss September 17, 1998
The personally appeared the above-named Xxxxxxx X. Xxxxxxxx of Citizens
Capital Inc. and acknowledged the foregoing instrument to be his free act and
deed and the free act and deed of Citizens Capital, Inc.,
Before me,
/s/ Xxxxx X. Xxxxxx
-----------------------------
Notary Public
My Commission Expires: 1/29/99
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss September 17, 1998
The personally appeared the above-named Xxxxxxx X. Xxxxxxxx of Citizens
Ventures, Inc. and acknowledged the foregoing instrument to be his free act and
deed and the free act and deed of Citizens Ventures, Inc.,
Before me,
/s/ Xxxxx X. Xxxxxx
----------------------------
Notary Public
My Commission Expires: 1/29/99
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss September 17, 1998
The personally appeared the above-named Xxxxxxx X. Xxxxxxxx of BankBoston,
N.A. and acknowledged the foregoing instrument to be his free act and deed and
the free act and deed of BankBoston, N.A.,
Before me,
/s/ Xxxxx X. Xxxxxx
----------------------------
Notary Public
My Commission Expires: 1/29/99
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss . September 11, 1998
The personally appeared the above-named Xxxxxxx X. Day of Dover Saddlery,
Inc. and acknowledged the foregoing instrument to be his"free act and deed and
the free act and deed of Dover Saddlery, Inc.,
Before me,
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Notary Public
My Commission Expires:
XXXXXX X. XXXXXX, Notary Public
My Commission Expires Sept. 21, 2001
Annex 1
Language for amendment to Amended and Restated Certificate of Incorporation
of Dover Saddlery, Inc., a Delaware Corporation.
Section 6 of the Certificate should be amended to insert the following
paragraph after clause (g) thereof:
"For purposes of Section 6.2 above, BankBoston, N.A. shall not be
considered a successor or assign of the Corporation in the event that
it exercises its rights to foreclose on the stock of the Corporation
which is pledged to it."
