Patriot Capital Funding, Inc. 274 Riverside Avenue Westport, CT 06880 August 10, 2007
Exhibit 10.53(8)
Patriot Capital Funding, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
August 10, 2007
Dover Saddlery, Inc.
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Day
000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Day
| Re: Waiver and Consent to the Amended and Restated Senior Subordinated Note and Warrant Purchase Agreement (“Waiver and Consent”) |
To Whom It May Concern:
Reference is made to the Amended and Restated Senior Subordinated Note and Warrant Purchase
Agreement, dated as of September 16, 2005 (the “Original Note and Warrant Purchase
Agreement”), among Dover Saddlery, Inc., a Delaware corporation (the “Parent”), Dover
Saddlery, Inc., a Massachusetts corporation and wholly-owned subsidiary of Parent d/b/a “Nashoba
Valley Service Co.” (“Operating Company #1”), Xxxxx Brothers, Inc., a Texas corporation and
wholly-owned subsidiary of Parent (“Operating Company #2”), Dover Saddlery Retail, Inc., a
Massachusetts corporation and wholly-owned subsidiary of Parent (“Operating Company #3”)
and, together with Parent, Operating Company #1, and Operating Company #2, the “Borrower”),
Patriot Capital Funding, LLC I as successor by assignment from Patriot Capital Funding, Inc.
(“Purchaser”) and Patriot Capital Funding, Inc. (“Servicer”), as amended by
Amendment No. 1 dated March 28, 2006, among the Borrower, Purchaser and Servicer (“Amendment
No. 1”), Consent and Amendment No. 2, dated June 29, 2006, among the Borrower, Purchaser and
Servicer (“Amendment No. 2”) and Waiver and Amendment No. 3 dated March 30, 2007, among the
Borrower, Purchaser and Servicer (“Amendment No. 3”) (the Original Note and Warrant
Purchase Agreement, as amended by Amendment Xx. 0, Xxxxxxxxx Xx. 0 and Amendment No. 3 may be
referred to herein as the “Note and Warrant Purchase Agreement”).
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such
terms in the applicable Note and Warrant Purchase Agreement.
The parties to the Note and Warrant Purchase Agreement desire to permanently waive an Event of
Default thereunder and, pursuant to Sections 9.10(b) and 10.2 of the Note and Warrant Purchase
Agreement, such waiver must be in a written instrument signed by Borrower, Servicer and the
Required Purchasers. Purchaser, as sole holder of the Notes, constitutes the Required Purchasers
for purposes of executing this Waiver and Consent.
Therefore, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Waiver of Event of Default; Exclusion from Covenant Calculations.
(a) Waiver of Event of Default. Effective upon satisfaction of all conditions to
effectiveness of this Waiver and Consent set forth in Section 5 below, Servicer and Purchaser each
hereby permanently waive, as of June 30, 2007, the following Events of Default:
(i) the Event of Default resulting from Borrower’s breach of Section 7.3(a) of the Note
and Warrant Purchase Agreement (Funded Debt Ratio) by failing to maintain a maximum Funded
Debt Ratio for the four consecutive fiscal quarter period ended June 30, 2007 (calculated in
the manner set forth in the Note and Warrant Purchase Agreement) of not more than 4.40:1.00;
(ii) the Event of Default resulting from Borrower’s breach of Section 7.3(b) of the
Note and Warrant Purchase Agreement (Funded Senior Debt Ratio) by failing to maintain a
maximum Funded Senior Debt Ratio for the four consecutive fiscal quarter period ended June
30, 2007 (calculated in the manner set forth in the Note and Warrant Purchase Agreement) of
not more than 3.58:1.00;
(iii) the Event of Default resulting from Borrower’s breach of Section 7.3(c) of the
Note and Warrant Purchase Agreement (Operating Cash Flow to Total Debt Service) by failing
to maintain a minimum ratio of (i) Operating Cash Flow to (ii) Total Debt Service for the
four consecutive fiscal quarter period ended June 30, 2007 (calculated in the manner set
forth in the Note and Warrant Purchase Agreement) of not less than 1.00:1.00; and
(iv) the Event of Default resulting from Borrower’s breach of Section 7.3(d) of the
Note and Warrant Purchase Agreement (Minimum EBITDA Amount) by failing to maintain a minimum
EBITDTA for the four consecutive fiscal quarter period ended June 30, 2007 (calculated in
the manner set forth in the Note and Warrant Purchase Agreement) of not less than
$3,375,000.
The waiver set forth herein relates solely to the specific instances described in this Section
1(a) and no other waiver is granted or intended.
(b) Exclusion from Covenant Calculations. Effective upon satisfaction of all
conditions to effectiveness of this Waiver and Consent set forth in Section 5 below, Servicer and
Purchaser each hereby consent to the exclusion of the Qualifying Amounts (as hereinafter defined)
from the covenant computation required by Section 7.3(a) of the Note and Warrant Purchase Agreement
(Funded Debt Ratio), Section 7.3(b) of the Note and Warrant Purchase Agreement (Funded Senior Debt
Ratio), Section 7.3(c) of the Note and Warrant Purchase Agreement (Operating Cash Flow to Total
Debt Service) and Section 7.3(d) of the Note and Warrant Purchase Agreement (Minimum EBITDA Amount)
for the four fiscal quarters ending June 30, 2007, September 30, 2007, December 31, 2007 and March
31, 2008; provided, however, that all Qualifying Amounts shall have been accrued by Borrower as of
March 31, 2007 and no Default or Event of Default shall have existed at the time Borrower paid any
portion of the Qualifying Amounts. As used herein, “Qualifying Amounts” means up to $700,000
payable to Xxxxxxxxx Agio Xxxxx & Xxxxxx LLC (“Xxxxxxxxx Agio”) pursuant to the terms of
that certain Settlement Agreement dated May 31 2007 by and between Parent and Xxxxxxxxx Agio (the
“Settlement Agreement”).
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2. Fees; Expenses.
(a) Waiver Fee. In consideration of the execution and delivery of this Waiver and
Consent by Servicer and Purchaser, and the accommodations contained herein, Borrower shall pay to
Servicer on the date hereof a fully earned and non-refundable fee in the amount of Thirty Thousand
Dollars ($30,000) (the “Waiver Fee”).
(b) Expenses. On the date hereof, Borrower shall also pay all reasonable expenses
incurred by Servicer in the drafting, review, negotiation and closing of the documents and
transactions contemplated hereby, including the reasonable fees and disbursements of Servicer’s
special counsel.
3. Reaffirmation. The Note and Warrant Purchase Agreement shall remain unmodified and
in full force and effect and is hereby reaffirmed. In addition, except as specifically provided in
Section 1(a) above, this Waiver and Consent shall not be deemed a waiver of any term or condition
of the Note and Warrant Purchase Agreement or any other Transaction Document, and shall not be
deemed to prejudice any right or rights which any party may now have or may have in the future
under or in connection with the Note and Warrant Purchase Agreement or any other Transaction
Document, as the same may be amended from time to time.
4. Representations. To induce Servicer and Purchaser to enter into this Waiver and
Consent, Borrower represents and warrants to each that:
(a) all of its representations and warranties in the applicable Transaction Documents are: (i)
true and correct as of the date of this Waiver and Consent, (ii) ratified and confirmed without
condition as if made anew, and (iii) incorporated into this Waiver and Consent by reference;
(b) no Event of Default or event that, with the passage of time or the giving of notice or
both, would constitute an Event of Default, exists under any Transaction Document that will not be
cured by the execution and effectiveness of this Waiver and Consent;
(c) no consent, approval, order or authorization of, or registration or filing with, any third
party is required in connection with the execution, delivery and carrying out of this Waiver and
Consent or, if required, has been obtained; and
(d) this Waiver and Consent has been duly authorized, executed and delivered so that it
constitutes the legal, valid and binding obligation of the Borrower, enforceable in accordance with
its terms.
The Borrower confirms that the obligations arising under the applicable Transaction Documents
remain outstanding without defense, set off, counterclaim, discount or charge of any kind as of the
date of this Waiver and Consent.
The Borrower further confirms that any collateral for the obligations arising under the Transaction
Documents, including liens, security interests, mortgages, and pledges granted by the Borrower or
third parties (if applicable), shall continue unimpaired and in full force and
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effect, and shall cover and secure all of the Borrower’s existing and future obligations to
Servicer and Purchaser, as modified by this Waiver and Consent.
5. Preconditions. This Waiver and Consent is subject to Servicer having received the
following, all in form, scope and content acceptable to Servicer in its sole discretion:
(a) this Waiver and Consent, duly executed by the parties hereto;
(b) the consent of Old Dominion Enterprises, Inc., as guarantor of the obligations arising
under the Transaction Documents, in the form attached hereto as Attachment I;
(c) the $30,000.00 Waiver Fee;
(d) payment of Servicer’s fees and expenses, including legal fees; and
(e) a waiver of the Senior Credit Agreement duly executed by the Senior Lender.
6. Further Covenant. Notwithstanding anything to the contrary contained in the Note
and Warrant Purchase Agreement and to induce Servicer and Purchaser to enter into this Waiver and
Consent, the Borrower covenants and agrees that on and from the date of this Waiver and Consent
until the earliest to occur of (a) the date that Borrower re-pays in full the unpaid principal
balance of the Notes, together with all accrued and unpaid interest, fees and other amounts then
due, (b) the date the parties enter into a mutually satisfactory amendment of the Note and Warrant
Purchase Agreement or (c) the Payment Date, the Borrower shall not enter into any new operating
leases of real estate or make or commit to make any payments on account of the purchase or lease of
any fixed assets (whether through purchase, Capitalized Lease or operating lease); provided,
however, that nothing contained in this Section 6 shall prohibit or restrict Borrower from making
or committing to make (i) payments in accordance with the restrictions contained in the Note and
Warrant Purchase Agreement under operating leases of real estate entered into, or fixed assets
purchased or leased, prior to the date hereof and (ii) payments not to exceed $75,000 in the fiscal
quarter ending September 30, 2007 and $100,000 in the fiscal quarter ending December 31, 2007, the
proceeds of which are used exclusively for the maintenance or repair of facilities or equipment
under operating leases of real estate entered into, or fixed assets purchased or leased, prior to
the date hereof.
7. Waiver, Release and Indemnity. To induce Servicer and Purchaser to enter into this
Waiver and Consent, the Borrower waives and releases and forever discharges Servicer, Purchaser and
their respective officers, directors, attorneys, agents and employees from any liability, damage,
claim, loss or expense of any kind that it may now have against Servicer, Purchaser or any of them
arising out of or relating to the obligations arising under the applicable Transaction Documents.
The Borrower further agrees to indemnify and hold Servicer, Purchaser and their respective
officers, directors, attorneys, agents and employees harmless from any loss, damage, judgment,
liability or expense (including attorneys’ fees) suffered by or rendered against Servicer,
Purchaser or any of them on account of any claims arising out of or relating to the obligations
arising under the applicable Transaction Documents; provided, however, that the foregoing waiver,
release and indemnity agreement shall not apply to any claims, damages, losses, liabilities,
judgments and expenses solely attributable to the gross negligence or willful misconduct of
Servicer, Purchaser or their respective officers, directors, attorneys, agents and
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employees. The Borrower further states that it has carefully read the foregoing waiver,
release and indemnity, knows and understands the contents thereof and grants the same as its own
free act and deed.
8. Miscellaneous. This Waiver and Consent shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to principles of conflicts
of law. This Waiver and Consent may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
Delivery of an executed signature page to this Waiver and Consent by facsimile transmission shall
be as effective as delivery of a manually signed counterpart hereof or thereof. Borrower ratifies
and confirms the indemnification, confession of judgment and waiver of jury trial provisions
contained in the Note and Warrant Purchase Agreement.
[Signature page follows]
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| Very truly yours, SERVICER PATRIOT CAPITAL FUNDING, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxx Xxxxxxx | |||
| Title: | Chief Operating Officer | |||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
ACKNOWLEDGED and AGREED
this 10th day of August, 2007
this 10th day of August, 2007
| PURCHASER | PARENT: | |
PATRIOT CAPITAL FUNDING, LLC I
|
DOVER SADDLERY, INC. | |
By:
/s/ Xxxxxxx X. Xxxxxxx
|
By: /s/ Xxxxxxx X. Day | |
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Operating Officer |
Xxxxxxx X. Day President |
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
| OPERATING COMPANY #1: | OPERATING COMPANY #2: | |
DOVER SADDLERY, INC. d/b/a Nashoba
Valley Service Co.
|
XXXXX BROTHERS, INC. | |
By:
/s/ Xxxxxxx X. Day
|
By: /s/ Xxxxxxx X. Day | |
Xxxxxxx
X. Day Director |
Xxxxxxx X. Day Director |
OPERATING COMPANY #3:
DOVER SADDLERY RETAIL, INC.
By: /s/ Xxxxxxx X. Day
By: /s/ Xxxxxxx X. Day
Xxxxxxx X. Day
Director
Director
ATTACHMENT I
TO WAIVER AND CONSENT
TO WAIVER AND CONSENT
CONSENT OF GUARANTOR
The undersigned guarantor (the “Guarantor”) consents to the provisions of the
foregoing Waiver and Consent to the Amended and Restated Senior Subordinated Note and
Warrant Purchase Agreement (“Waiver and Consent”) and all prior amendments and
confirms and agrees that:
(a) the Guarantor’s obligations under its Subsidiary Guaranty dated as of June 29, 2006 (the
“Guaranty”), relating to the Guaranteed Obligations defined therein, shall be unimpaired by
Waiver and Consent;
(b) the Guarantor has no defenses, set offs, counterclaims, discounts or charges of any kind
against Servicer, Purchaser or their respective officers, directors, employees, agents or attorneys
with respect to its Guaranty; and
(c) all of the terms, conditions and covenants in its Guaranty remain unaltered and in full
force and effect and are hereby ratified and confirmed and apply to the Obligations, as modified by
Waiver and Consent.
The Guarantor certifies that all representations and warranties made in its Guaranty are true
and correct. Further, Guarantor hereby confirms that any collateral for the Obligations, including
liens, security interests, mortgages, and pledges granted by the Guarantor or third parties (if
applicable), shall continue unimpaired and in full force and effect, and shall cover and secure all
of the Guarantor’s existing and future Obligations to Servicer and Purchaser, as modified by Waiver
and Consent and subject to the Subordination Agreement. The Guarantor ratifies and confirms the
indemnification, confession of judgment and waiver of jury trial provisions contained in its
Guaranty.
WITNESS the due execution of this Consent as a document under seal as of the date of Waiver
and Consent, intending to be legally bound hereby.
| OLD DOMINION ENTERPRISES, INC. |
||||
| By: | /s/ Xxxxxxx X. Day | |||
| Name: | Xxxxxxx X. Day | |||
| Title: | Director | |||
