FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.75
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (the Amendment) is dated as of the 29th day of March, 2013, by and among, Dover Saddlery, Inc., a Delaware corporation (Dover DE), Dover Saddlery, Inc., a Massachusetts corporation, Smith Brothers, Inc., a Texas corporation, Dover Saddlery Retail, Inc., a Massachusetts corporation, and Dover Saddlery Direct, Inc., a Massachusetts corporation (hereinafter, each with Dover DE, individually a Borrower, and collectively the Borrowers) and RBS Citizens, National Association, a national banking association, with a principal place of business at 875 Elm Street, Manchester, New Hampshire 03101 (hereinafter the Lender);
WHEREAS, Borrowers and Lender are parties to a Loan and Security Agreement dated December 11, 2007 (as the same has been, is being, and may hereafter be amended, renewed, restated and/or replaced, the Loan Agreement) whereby, inter alia, the Borrowers may borrow from Lender up to Thirteen Million Dollars ($13,000,000.00) in the form of a revolving line of credit loan; and
WHEREAS, the parties wish to amend the Loan Agreement to, inter alia, modify financial covenants, extend the maturity date of the revolving credit loan, add a term loan sublimit to the revolving line of credit and change the interest rate margins.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein contained, the parties agree as follows:
1. | DEFINITIONS. |
Any capitalized term not otherwise defined herein shall have the meaning set forth in the Loan Agreement.
2. | AMENDMENTS. |
2.1 The following amendments will be made to Section 1 of the Loan Agreement, Definitions by amending the following definitions:
a. The definition of Maturity Date is hereby amended and restated in its entirety to read as follows:
Maturity Date means April 30, 2015
b. The definition of Hedging Contract is replaced in its entirety with the following:
Hedging Contract means any and all rate swap transactions, foreign exchange transactions, credit derivative transactions and commodity transactions, including, but not limited to, basis swaps, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, whether with Lender or any affiliate of Lender, now existing or hereafter arising.
2.2 Section 3.1. The second to last sentence of Section 3.1 is hereby amended and restated in its entirety to read as follows:
As used in this Section 3, Borrowers Availability means an amount equal to the revolving line of credit approved by Lender, reduced by (a) the face amount of any Letters of Credit issued by the Lender and/or its Affiliates and (b) the amount outstanding under the term sublimit described below. All advances made by Lender under the Revolving Credit Loan, shall be payable as provided in the Revolving Credit Note which is incorporated hereby by reference;
2.3 Add the following new Section 3.11:
3.11 Term Sublimit. So long as no Event of Default has occurred hereunder or no event, but for the passage of time or giving of notice or both would constitute an Event of Default, Borrowers may request to convert up to Eight Million Dollars ($8,000,000) of the revolving line of credit to fund up to one hundred percent (100%) of the cost of CAPEX. An initial conversion under the term sublimit in the amount of up to Two Million Five Hundred Thousand Dollars ($2,500,000) shall be made on the date hereof. All future requests for conversions under the term sublimit shall be made on or before that day which is two (2) business days prior to December 31. In no event shall the maximum funded amount under the term sublimit exceed Five Million Dollars ($5,000,000) during the calendar year of 2013 and Eight Million Dollars ($8,000,000) during the 2014 calendar year (each, as applicable, the Term Sub-limit Availability). All amounts outstanding on the term sublimit will be subtracted from Borrowers Availability. Requests for conversions under the term sublimit shall be accompanied by a certification and breakdown of the CAPEX funded under the conversion. No conversion shall exceed one hundred percent (100%) of the cost of the CAPEX.
(a) An account shall be opened on the books of Lender (hereinafter the Term Sub-limit Account), in which account a record shall be kept of the conversions made by Lender to Borrowers under or pursuant to the Term Sub-limit, and all payments made by or on behalf of Borrowers with respect to the Term Sub-limit. Borrowers hereby authorize Lender to debit account # 3310580964 monthly for all amounts due to Lender under the Term Sub-limit;
(b) Lender may also keep a record (either in the Term Sub-limit Account or elsewhere, as Lender may from time to time elect) of all interest, service charges, costs, expenses and other debits owed Lender on account of the Term Sub-limit contemplated hereby and of all credits against such amounts so owed;
(c) All credits against Borrowers indebtedness indicated in the Term Sub-limit Account shall be conditional upon final payment to Lender of the items giving rise to such credits. The amount of any item credited against the Term Sub-limit Account which is not so paid or which is charged back against Lender for any reason may be charged as a debit to the Term Sub-limit Account, may be charged back against any deposit account maintained by Borrowers with Lender, and shall be an obligation, in each instance whether or not the item so charged back or not so paid is returned; and
(d) Any statement rendered by Lender to Borrowers shall be considered correct and accepted by Borrowers, and shall be conclusively binding upon Borrowers unless Borrowers provide Lender written objection thereto within ninety (90) business days from the mailing of such statement, which written objection shall indicate, with particularity, the reason for such objection;
(e) Borrowers shall have the option of entering into Hedging Contracts for conversions made under the term sublimit.
2.4 Schedule 6.11 (all real estate owned or leased by Borrower) is replaced in its entirety with the Schedule 6.11 attached hereto.
2.5 Schedule 6.12 (all Proprietary Rights) is hereby replaced in its entirety with the Schedule 6.12 attached hereto and Borrower hereby reaffirms and grants to Lender a security interest in all Proprietary Rights.
2.6 Section 7.9.1 Section 7.9.1 is replaced in its entirety with the following:
7.9.1 maintain a ratio of Funded Debt to EBITDA of not more than the following, which shall be tested and measured quarterly on a trailing four (4) quarter basis:
2013 | 2014 | 2015 | ||||
March 31 | 3.25 | 3.00 | 2.75 | |||
June 30 | 3.00 | 2.75 | 2.50 | |||
September 30 | 3.00 | 2.75 | 2.50 | |||
December 31 | 3.00 | 2.75 | 2.50 |
Commencing on December 31, 2015 and at each fiscal year end thereafter, each quarterly ratio shall decrease by .25%.
2.7 Section 7.9.3 Section 7.9.3 is hereby amended and restated in its entirety to read as follows:
7.9.3 maintain a Fixed Charge Coverage Ratio of not less than 1.20 to 1.00, which shall be tested and measured quarterly on a trailing four (4) quarter basis.
For purposes of measuring this ratio, (a) CAPEX internally funded shall only be included to the extent that such amount is either not converted to a term loan under the term sub-limit and/or exceeds the Term Sublimit Availability as defined in Section 3.11 above and (b) all non-cash income and non-cash losses attributable to Hedging Contracts will be excluded from the calculation.
2.8 Lender waives Borrowers failure to comply with Section 8.13 in 2012. Borrower must comply with Section 8.13 going forward and agrees to use best efforts to obtain landlord waivers and consents and applicable leases for all locations shown on Schedule 6.11 as well as the Littleton Warehouse.
3. | CONDITIONS TO AMENDMENT. |
This Amendment is subject to the condition (in addition to all requirements of the Loan Agreement and all other Loan Documents, as they may be amended) that each of the following shall have been delivered or performed to the satisfaction of Lender:
3.1 Execution and/or delivery of this Amendment, an Amendment to the Revolving Credit Note and any other documents, consent or other matters required by Lender, including those contained on the Closing Agenda attached hereto as Schedule 3.1.
3.2 Payment of an origination fee to Lender for the extension of the Revolving Line of Credit Loan in the amount of Thirteen Thousand Dollars ($13,000.00) and a modification fee in the amount of $1,500.00.
3.3 Borrowers will pay all of Lenders costs and expenses incurred in preparation of this Amendment and the documents and instruments executed herewith.
4. | RATIFICATION. |
In all other respects, the Loan Agreement remains in full force and effect, and Borrowers agree to be bound thereby. Except as specifically amended herein, the terms and conditions of the Loan Agreement shall remain in full force and effect. Borrowers confirm and agree that the amendments contained herein shall in no way be construed as an obligation on the part of Lender to further amend or extend the Loan Agreement or any other Loan Documents. This Amendment is not a novation.
5. | REAFFIRMATION. |
Borrowers reaffirm each and every representation and warranty made by them in the Loan Agreement. Borrowers and Lender hereby agree and confirm that Borrowers have prior to this Amendment delivered to Lender the information and disclosures in accordance with the reporting requirements of the Loan Agreement.
6. | AUTHORITY. |
Borrowers warrant that it has full power and authority, and has taken all necessary corporate and other action and procured all necessary consents to execute and deliver this Amendment and perform its obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed on their behalf by the persons signing below who are thereunto duly authorized, as of the day and year first above-written.
PAGE ENDS HERE; SIGNATURE PAGES FOLLOW
BORROWERS: | ||||||
DOVER SADDLERY, INC. (a Delaware Corporation) | ||||||
/s/ David R. Pearce | By: | /s/ Stephen L. Day | ||||
Witness | Stephen L. Day | |||||
Title: President and CEO | ||||||
DOVER SADDLERY, INC. (a Massachusetts Corporation) | ||||||
/s/ David R. Pearce | By: | /s/ Stephen L. Day | ||||
Witness | Stephen L. Day | |||||
Title: Chairman | ||||||
SMITH BROTHERS, INC. | ||||||
/s/ David R. Pearce | By: | /s/ Stephen L. Day | ||||
Witness | Stephen L. Day | |||||
Title: Chairman | ||||||
DOVER SADDLERY RETAIL, INC. | ||||||
/s/ David R. Pearce | By: | /s/ Stephen L. Day | ||||
Witness | Stephen L. Day | |||||
Title: Chairman |
DOVER SADDLERY DIRECT, INC. | ||||||
/s/ David R. Pearce | By: | /s/ Stephen L. Day | ||||
Witness | Stephen L. Day | |||||
Title: Chairman | ||||||
LENDER: | ||||||
RBS CITIZENS, NATIONAL ASSOCIATION | ||||||
| By: | /s/ Gary Hatfield | ||||
Witness | Gary Hatfield | |||||
Title: |
SCHEDULE 6.11
Locations of Collateral
595 Washington Street, Wellesley, Norfolk County, Massachusetts 02482
683 Yorklyn Road, Hockessin, New Castle County, Delaware 19707
16 Atkinson Depot Road, Plaistow, Rockingham County, New Hampshire 03865
1041 Maryland Route 3N, Gambrills, Anne Arundel County, Maryland 21054
10 Fila Way, Sparks, Baltimore County, Maryland 21152
43717 John Mosby Highway, Chantilly, Fairfax County, Virginia 20152
195 Seminole Court, Seminole Square, Charlottesville, Albemarle County, Virginia 22901
484 Maury River Road, Lexington, Rockbridge County, Virginia 24450
7529 Campbell Road, Suite 306, Dallas County, Dallas, Texas 75248
2541 White Mountain Highway, North Conway, Carroll County, New Hampshire
525 Great Road, Littleton, Massachusetts 01460
7833 I35, Denton, Denton County, Texas 76207
3150 US Hwy 22, Suite #8, Somerset County, Branchburg, New Jersey 08876
670 North Main Street, Suite 112, Fulton County, Alpharetta, Georgia 30009
1340 B Ten Rod Road, Washington County, North Kingstown, Rhode Island 02852
11120 South Twenty Mile Road, Douglas County, Parker, Colorado 80134
300 Peterson Road, Hwy 137, Lake County, Libertyville, Illinois 60048
1438 Easton Road, Bucks County, Warrington, Pennsylvania 18976
306 Clydesdale Trail, Hennepin County, Medina, Minnesota 55340
7920 Skyland Ridge Parkway, Wake County, Raleigh, North Carolina 27617
90 W. Jericho Turnpike, Suffolk County, Huntington Station, New York 11746
SCHEDULE 6.12
Intellectual Property Schedule
Trademark Registrations
MARK | JURISDICTION | REGISTRATION | DATE OF REG. | STATUS OF RENEWAL FILINGS | NEXT RENEWAL DATE | GOODS/SERVICES | ||||||
THE SOURCE | United States | 2,661,925 | 12/17/02 | 8&9 accepted 6/29/2012 | 8&9 Renewal Due 12/17/2022 | Retail store and mail order services | ||||||
PROFESSIONAL HORSEMANS SUPPLY | United States | 2,852,694 | 6/15/04 | 8&15 accepted 3/12/2010 | 8&9 Renewal Due 6/15/2014 | Retail store services, mail and internet order services | ||||||
RIDING SPORT | United States | 3,008,491 | 10/25/05 | 8&15 accepted 8/24/2011 | 8&9 Renewal Due 10/25/2015 | Clothing | ||||||
OPEN RANGE | United States | 3,169,751 | 11/7/06 | 8&15 accepted 3/22/2012 | 8&9 Renewal Due 11/7/2016 | Equestrian Products | ||||||
DOVER SADDLERY | United States | 2,619,416 | 9/17/02 | 8&15 accepted 8/20/2008 | Allowed mark to go abandoned, registered new mark to include additional services | Retail store featuring equestrian related products | ||||||
SMITH BROTHERS | United States | 3,312,648 | 10/16/07 | N/A | 8&15 Due 10/16/2013 | Lariat ropes and piggin strings | ||||||
SB SMITH BROTHERS | United States | 3,246,536 | 5/29/07 | N/A | 8&15 Due 5/29/13 | Retail store featuring equestrian related products | ||||||
SMITH BROTHERS | United States | 3,246,525 | 5/29/07 | N/A | 8&15 Due 5/29/13 | Retail store featuring equestrian related products | ||||||
SB SMITH BROTHERS | United States | 2,392,982 | 10/10/00 | 8&9 accepted 10/12/10 | 8&9 Due 10/10/2020 | Horse related equipment and supplies | ||||||
DOVER SADDLERY | Japan | 5,037,161 | 3/10/07 | N/A | 3/30/2017 | Retail store featuring equestrian related products | ||||||
DOVER SADDLERY | Europe | 2,873,537 | 9/25/02 | Mark renewed 4/12/2012 | 9/25/2022 | Retail store featuring equestrian related products |
MARK | JURISDICTION | REGISTRATION | DATE OF REG. | STATUS OF RENEWAL FILINGS | NEXT RENEWAL DATE | GOODS/SERVICES | ||||||
RIDERS INTERNATIONAL | United States | 3,388,431 | 2/26/08 | N/A | 8&15 Due 2/26/2014 | Equestrian products, namely, saddles | ||||||
THE CIRCUIT | United States | 3,434,919 | 5/27/08 | N/A | 8&15 Due 5/27/2014 | Leather goods and clothing | ||||||
RIDING SPORT | United States | 3,582,163 | 3/3/09 | N/A | 8&15 Due 3/3/2015 | Equestrian goods, namely, breeches and clothing | ||||||
HORSEPHARM | United States | 3,869,725 | 11/2/10 | N/A | 8&15 Due 11/2/16 | Veterinary services, namely, providing medication, drugs and supplies via the internet, mail and in a store | ||||||
SERGEANTS WESTERN WORLD | United States | 3,597,037 | 3/31/09 | N/A | 8&15 Due 3/31/15 | Retail store services | ||||||
SILVER MESA | United States | 1,868,292 | 12/20/94 | 8&9 accepted 2/16/06 | 8&9 Due 12/20/2014 | Horse equipment | ||||||
DOVERX HORSEPHARM | United States | 3,950,625 | 4/26/11 | N/A | 8&15 Due 4/26/2017 | Retail veterinary pharmacy services via the internet, mail and in store | ||||||
NORTH WIND | United States | 4,117,809 | 3/27/12 | N/A | 8&15 Due 3/27/2018 | Equestrian related goods, namely, horse blankets | ||||||
HUNTFIELDS | United States | 4,128,132 | 4/17/12 | N/A | 8&15 Due 4/17/2018 | Boots | ||||||
DOVER SADDLERY | United States | 4,300,686 | 3/12/13 | N/A | 8&15 Due 3/12/2019 | Retail store featuring equestrian equipment and related accessories; mail order catalog services featuring equestrian equipment and related accessories; on-line retail store services featuring equestrian equipment and related accessories |
Trademark Applications
MARK | JURISDICTION | SERIAL NO. | FILING DATE | STATUS | GOODS/ SERVICES | |||||
HUNTFIELDS | United States | 85/490,235 | 12/8/11 | Verified Statement of Use Due 7/10/2013 | Breeches, sport shirts, coats, gloves, pants, tights, vests, hats, scarves, belts and ties |
Common Law Trademarks
MARK | JURISDICTION | REGISTRATION /SERIAL NO. | DATE OF REG. | STATUS OF RENEWAL FILINGS | NEXT RENEWAL DATE | GOODS/SERVICES | ||||||
DOVERX | United States | N/A | N/A | N/A | N/A | Retail veterinary pharmacy services, namely, providing medication, drugs and veterinary supplies via the internet, mail and in store | ||||||
MISCELLANEOUS DESIGN FOR ROPE CAN | United States | N/A | N/A | N/A | N/A | Rope can | ||||||
WELLINGTON | United States | N/A | N/A | N/A | N/A | Equestrian products, namely, breastplates, bridles, reins, standing martingales, cheek pieces, and jumper breast girths | ||||||
SHOWMARK | United States | N/A | N/A | N/A | N/A | Equestrian products, namely, bridles, nosebands, running martingales, reins, breastplates, brow bands, nose bands, cheek pieces | ||||||
MIDDLEBURG | United States | N/A | N/A | N/A | N/A | Equestrian products, namely, leather lead shank, and leather halter | ||||||
WARENDORF | United States | N/A | N/A | N/A | N/A | Equestrian products, namely, bridles, bridle parts, martingales, reins | ||||||
CIRCUIT | United States | N/A | N/A | N/A | N/A | Equestrian products, namely, bridles, saddles, girths, leathers, reins, halters, martingales, breastplates |
MARK | JURISDICTION | REGISTRATION /SERIAL NO. | DATE OF REG. | STATUS OF RENEWAL FILINGS | NEXT RENEWAL DATE | GOODS/SERVICES | ||||||
CROWN | United States | N/A | N/A | N/A | N/A | Equestrian products, namely, bridles, leathers, reins, martingales and breastplates | ||||||
SUFFOLK | United States | N/A | N/A | N/A | N/A | halters, bridles, leathers, reins, martingales and breastplates | ||||||
COOL BLAST | United States | N/A | N/A | N/A | N/A | Clothing, namely, shirts |
Copyright Registrations
MARK | JURISDICTION | REGISTRATION / SERIAL NO. | DATE OF REG. | CURRENT RENEWAL DATE | GOODS | |||||
Dover Saddlery 1998-1999 Catalog, The Source | United States | TX 5-123-079 | January 3, 2000 | n/a/ | Dover Saddlery 1998-1999 Catalog, The Source | |||||
Smith Brothers Catalog P62B-2004 Barrel Racers Edition | United States | TX-6 014-324 | July 8, 2004 | n/a | Smith Brothers Catalog P62B-2004 Barrel Racers Edition | |||||
Smith Brothers Catalog P62R-2004 Ropin Edition | United States | TX-6 014-325 | July 8, 2004 | n/a | Smith Brothers Catalog P62R-2004 Ropin Edition | |||||
Smith Brothers Catalog P62S-2004 Western Show Edition | United States | TX-6 010-183 | July 7, 2004 | n/a | Smith Brothers Catalog P62S-2004 Western Show Edition | |||||
Smith Brothers Catalog P62G-2004 Summer Sale | United States | TX 6 010-184 | July 7, 2004 | n/a | Smith Brothers Catalog P62G 2004 Summer Sale | |||||
DOVER SADDLERY 2009-2010 ELITE DRESSAGE EDITION | United States | TX7-075-385 | November 11, 2009 | n/a | DOVER SADDLERY 2009-2010 ELITE DRESSAGE EDITION | |||||
DOVER SADDLERY 2009-2010 ELITE HUNTER/JUMPER EDITION FIRST PRINTING | United States | TX7-076-792 | November 11, 2009 | n/a | DOVER SADDLERY 2009-2010 ELITE HUNTER/JUMPER EDITION FIRST PRINTING | |||||
DOVER SADDLERY 2009-2010 ELITE HUNTER/JUMPER EDITION SECOND PRINTING | United States | TX7-073-491 | November 11, 2009 | n/a | DOVER SADDLERY 2009-2010 ELITE HUNTER/JUMPER EDITION SECOND PRINTING |
Inventions
Dover Saddlery, Inc. owns all rights to an invention entitled STORE OPTIMIZATION MODEL which may be patentable.
License Agreement
License Agreement by and between Saddlery, Inc. and Weatherbeeta PTY LTD, an Australian Corporation, for the trademarks Millers and Millers Harness as follows:
U.S. Registration No. 1,087,381
U.S. Registration No. 1,608,811
U.S. Registration No. 0,885,095
Canadian Registration No. 240,890
Mexican Registration No. 504,551
Brazilian Registration No.  ###-###-####
Brazilian Registration No.  ###-###-####
Brazilian Registration No.  ###-###-#### (pending); and
Brazilian Registration No.  ###-###-####