EXHIBIT 10.42
[Execution Version]
TWENTY-FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS TWENTY-FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated March 21, 2002, is entered into by and among CONGRESS
FINANCIAL CORPORATION, a Delaware corporation ("Lender"), HANOVER DIRECT
PENNSYLVANIA, INC., a Pennsylvania corporation ("HDPI"), BRAWN OF CALIFORNIA,
INC., a California corporation ("Brawn"), GUMP'S BY MAIL, INC., a Delaware
corporation ("GBM"), GUMP'S CORP., a California corporation ("Gump's"), HANOVER
DIRECT VIRGINIA INC., a Delaware corporation ("HDV"), HANOVER REALTY, INC., a
Virginia corporation ("Hanover Realty"), THE COMPANY STORE FACTORY, INC., a
Delaware corporation ("TCS Factory"), THE COMPANY OFFICE, INC., a Delaware
corporation ("TCS Office"), SILHOUETTES, LLC, a Delaware limited liability
company ("Silhouettes LLC"), HANOVER COMPANY STORE, LLC, a Delaware limited
liability company ("HCS LLC"), DOMESTICATIONS, LLC, a Delaware limited liability
company ("Domestications LLC") and KEYSTONE INTERNET SERVICES, INC., a Delaware
corporation ("Keystone Internet"; and together with HDPI, Brawn, GBM, Gump's,
HDV, Hanover Realty, TCS Factory, TCS Office, Silhouettes, HCS LLC and
Domestications, collectively, the "Borrowers" and each individually, a
"Borrower" ), and HANOVER DIRECT, INC., a Delaware corporation, ("Hanover"),
AMERICAN DOWN & TEXTILE COMPANY, a Wisconsin corporation ("American Down"), X.X.
ADVERTISING, INC., a New Jersey corporation ("DM Advertising, Inc."), KEYSTONE
LIQUIDATIONS, INC., a Delaware corporation, formerly known as Tweeds of Vermont,
Inc. ("Keystone Liquidations"), HANOVER HOME FASHIONS GROUP, LLC, a Delaware
limited liability company ("HHFG LLC"), ENCORE CATALOG, LLC, a Delaware limited
liability company ("Encore LLC"), CLEARANCE WORLD OUTLETS, LLC, a Delaware
limited liability company ("Clearance World"), SCANDIA DOWN, LLC, a Delaware
limited liability company ("Scandia Down, LLC"), ERIZON, INC., a Delaware
corporation ("erizon, inc."), HANOVER BRANDS, INC., a Delaware corporation
("Hanover Brands"), LACROSSE FULFILLMENT, LLC, a Delaware limited liability
company ("LaCrosse, LLC") and SAN DIEGO TELEMARKIETING, LLC, a Delaware
limited liability company ("San Diego LLC"; and together with Hanover, American
Down, DM Advertising, Inc., Keystone Liquidations, HHFG LLC, Encore LLC,
Clearance World, Scandia Down, LLC, erizon, inc., Hanover Brands and LaCrosse,
LLC, collectively, the "Existing Guarantors" and each individually, an "Existing
Guarantor"), and X.X. Advertising, LLC, a Delaware limited liability company
("DM Advertising, LLC"). Each Existing Guarantor, together with DM Advertising,
LLC, shall hereinafter be referred to individually as a "Guarantor" and
collectively as the "Guarantors".
W I T N E S S E T H:
WHEREAS, Borrowers, Existing Guarantors and Lender are parties to the Loan
and Security Agreement, dated November 14, 1995, as amended by First Amendment
to Loan and Security Agreement, dated February 22, 1996, Second Amendment to
Loan and Security Agreement, dated April 16, 0000, Xxxxx Xxxxxxxxx to Loan and
Security Agreement, dated May 24, 0000, Xxxxxx Xxxxxxxxx to Loan and Security
Agreement, dated May 31, 1996, Fifth Amendment to Loan and Security Agreement,
dated September 11, 1996, Sixth Amendment to Loan and Security Agreement, dated
as of December 5, 1996, Seventh Amendment to Loan and Security Agreement, dated
as of December 18, 1996, Eighth Amendment to Loan and Security Agreement, dated
as of March 26, 1997, Ninth Amendment to Loan and Security Agreement, dated as
of April 18, 1997, Tenth Amendment to Loan and Security Agreement, dated as of
October 31, 1997, Eleventh Amendment to Loan and Security Agreement, dated as of
March 25, 1998, Twelfth Amendment to Loan and Security Agreement, dated as of
September 30, 1998, Thirteenth Amendment to Loan and Security Agreement, dated
as of September 30, 1998, Fourteenth Amendment to Loan and Security Agreement,
dated as of February 28, 2000, Fifteenth Amendment to Loan and Security
Agreement, dated as of March 24, 2000, Sixteenth Amendment to Loan and Security
Agreement, dated as of August 8, 2000, Seventeenth Amendment to Loan and
Security Agreement, dated as of January 5, 2001, Eighteenth Amendment to Loan
and Security Agreement, dated as of November 12, 2001, Nineteenth Amendment to
Loan and Security Agreement, dated as of December 18, 2001 and Twentieth
Amendment to Loan and Security Agreement, dated as of March 5, 2002 (as so
amended, the "Loan Agreement"), pursuant to which Lender has made loans and
advances to Borrowers; and
WHEREAS, Borrowers and Existing Guarantors have requested that Lender
consent to, and enter into certain amendments to the Loan Agreement with respect
to the minimum amounts of Consolidated Working Capital, Consolidated Net Worth
and EBITDA that Hanover and its Subsidiaries are required to maintain and to
amend the definition of Consolidated Net Worth; and
WHEREAS, Borrowers and Existing Guarantors have requested that DM
Advertising, LLC become a Guarantor pursuant to the terms and conditions of the
Loan Agreement, as amended hereby; and
WHEREAS, the parties to the Loan Agreement desire to enter into this
Amendment to evidence and effectuate such consents, amendments and agreements,
and certain other amendments to the Financing Agreements relating thereto, in
each case subject to the terms and conditions and to the extent set forth
herein;
NOW, THEREFORE, in consideration of the premises and covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
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(a) Additional Definition. As used herein and in the Loan Agreement
and the other Financing Agreements, the term "DM Advertising, LLC" shall mean
X.X. Advertising, LLC, formerly known as Creative Capital Ventures, LLC, a
Delaware limited liability company, and its successors and assigns.
(b) Amendment to Definition. All references to the term
"Consolidated Net Worth" in the Loan Agreement and the other Financing
Agreements are deemed amended and each such reference is hereby amended to mean,
as to any Person, at any time, in accordance with generally accepted accounting
principles, as in effect from time to time consistently applied, on a
consolidated basis for such Person and its Subsidiaries, the amount equal to the
result obtained by taking total assets and subtracting therefrom total
liabilities of such Person and its Subsidiaries; provided, however, (a) that
solely for purposes of calculating Consolidated Net Worth of Hanover and its
Subsidiaries as at the end of Hanover's 1995 fiscal year, up to $4,500,000 in
write-downs of Hanover's deferred taxes asset, as required pursuant to Financial
Accounting Standards No. 109, due to losses incurred by Hanover and its
Subsidiaries in such fiscal year, shall not be considered reductions of the
deferred taxes asset of Hanover, (b) that for purposes of calculating
Consolidated Net Worth of Hanover and its Subsidiaries, the outstanding
Indebtedness for Borrowed Money evidenced by the $25,000,000 IMR Subordinated
Note shall not be considered a liability of Hanover, and (c) that effective July
1, 2002, solely for purposes of calculating Consolidated Net Worth of Hanover
and its Subsidiaries for the fiscal month ending July 2002 and every fiscal
month thereafter, to the extent that goodwill or intangible assets (or both) of
Hanover or its Subsidiaries is impaired under the provisions of Financial
Accounting Standards No. 142 ("FAS No. 142"), such that Hanover is required
pursuant to FAS No. 142 to take a charge to write off part or all of goodwill or
intangible assets (or both) of Hanover or its Subsidiaries, then such write off
of goodwill or intangible assets (or both) shall not be considered a reduction
of total assets of such Subsidiaries or Hanover.
(c) Interpretation. All capitalized terms used herein and not
defined herein shall have the meanings given to such terms in the Loan
Agreement.
2. Assumption of Obligations; Amendments to Guarantees and Financing
Agreements; Acknowledgments with respect to Hanover 2001 Reorganization.
(a) The Guarantee and Waiver, dated November 14, 1995, executed by
the Existing Guarantors, other than Hanover and Borrowers, as of such date, in
favor of Lender, as heretofore amended (the "Subsidiary Guarantee"), shall be
deemed further amended to include DM Advertising, LLC as an additional Guarantor
party signatory thereto. DM Advertising, LLC hereby expressly (i) assumes and
agrees to be directly liable to Lender, jointly and severally with the other
Guarantors signatories thereto and the Borrowers, for all Obligations (as
defined in the Subsidiary Guarantee), (ii) agrees to perform, comply with and be
bound by all terms, conditions and covenants of the Subsidiary Guarantee with
the same force and effect as if DM Advertising, LLC had originally executed and
been an original party signatory to the Subsidiary Guarantee, and (iii) agrees
that Lender shall have all rights, remedies and interests with respect to DM
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Advertising, LLC and its properties with the same force and effect as if it had
originally executed and been an original party signatory to the Subsidiary
Guarantee.
(b) DM Advertising, LLC hereby expressly 1. assumes and agrees to be
directly liable for all Obligations under, contained in, or arising out of the
Loan Agreement, the General Security Agreement, dated November 14, 1995, by the
Existing Guarantors, other than Hanover and Borrowers, as of such date, in favor
of Lender, as heretofore amended (the "Subsidiary General Security Agreement"),
and the other Financing Agreements applicable to all Guarantors and as applied
to DM Advertising, LLC as a Guarantor, 2. agrees to perform, comply with and be
bound by all terms, conditions and covenants of the Loan Agreement, the
Subsidiary General Security Agreement and the other Financing Agreements
applicable to all Guarantors and as applied to DM Advertising, LLC as a
Guarantor with the same force and effect as if DM Advertising, LLC had
originally executed and been an original Guarantor or Debtor, as the case may
be, party signatory to the Loan Agreement, the Subsidiary General Security
Agreement and the other Financing Agreements, and 3. agrees that Lender shall
have all rights, remedies and interests, including security interests in the
Collateral granted pursuant to Section 3 hereof, the Loan Agreement, the
Subsidiary General Security Agreement, and the other Financing Agreements, with
respect to DM Advertising, LLC and its properties and assets with the same force
and effect as if DM Advertising, LLC had originally executed and had been an
original Guarantor or Debtor, as the case may be, party signatory to the Loan
Agreement, the Subsidiary General Security Agreement and the other Financing
Agreements, and such agreements shall be deemed so amended.
(c) Each Guarantor, including, without limitation, DM Advertising,
LLC as a Guarantor pursuant hereto, hereby expressly and specifically ratifies,
restates and confirms the terms and conditions of its respective Guarantee(s) in
favor of Lender and its liability for all of the Obligations (as defined in its
Guarantee(s)), and all other obligations, liabilities, agreements and covenants
thereunder.
(d) Each Borrower, and each Guarantor, including, without
limitation, DM Advertising, LLC, hereby agrees that all references to Guarantor
or Guarantors or other terms intended to refer to a Guarantor or Guarantors,
such as Debtor or Debtors, contained in any of the Financing Agreements are
hereby amended to include DM Advertising, LLC and each other person or entity at
any time hereafter made a "Guarantor" under the Loan Agreement, as an additional
Guarantor or Debtor, or other appropriate term of similar import, as the case
may be.
3. Collateral. Without limiting the provisions of the Loan Agreement, the
Subsidiary General Security Agreement, the other Financing Agreements and
Section 2(b) hereof, as collateral security for the prompt payment and
performance when due of all of the Obligations of DM Advertising, LLC to Lender,
DM Advertising, LLC hereby grants to Lender, a continuing security interest in,
and lien upon, and right of setoff against, and DM Advertising, LLC hereby
pledges and assigns to Lender, all of its now owned and hereafter acquired and
arising assets and properties, all of which shall be included in the definition
of Collateral as set forth in the
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Subsidiary General Security Agreement (which definition is hereby amended
accordingly), including, without limitation, the following:
(a) all present and future Accounts;
(b) all Inventory;
(c) all Equipment;
(d) all Real Property;
(e) all present and future books, records, ledger cards, computer
programs and other property and general intangibles evidencing or relating to
any of the above, any other collateral or any account debtor, together with the
file cabinets or containers in which the foregoing are stored; and
(f) all present and future products and proceeds of the foregoing,
in any form, including, without limitation, any insurance proceeds and any
claims against third persons for loss or damage to or destruction of any or all
of the foregoing.
4. Consolidated Working Capital. Section 6.19(b) of the Loan Agreement is
hereby deleted in its entirety and replaced with the following Section 6.19(b)
and a new Section 6.19(c) as follows:
"(b) Hanover shall, commencing with the fiscal month ending
April 2000 and for each fiscal month thereafter in any fiscal year
thereafter through and including the fiscal month ending February
2002, maintain Consolidated Working Capital, calculated on a
consolidated basis for Hanover and its Subsidiaries, of not less
than the following amounts as at the end of each such fiscal month
for each such fiscal:
Period Amount
------ ------
March $20,000,000
April $20,000,000
May $20,000,000
June $20,000,000
July $20,000,000
August $20,000,000
September $20,000,000
October $20,000,000
November $20,000,000
December $20,000,000
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January $12,500,000
February $12,500,000
(c) Hanover shall, commencing with the fiscal month ending
March 2002 and for each fiscal month thereafter in any fiscal year
thereafter, maintain Consolidated Working Capital, calculated on a
consolidated basis for Hanover and its Subsidiaries, of not less
than the following amounts as at the end of each such fiscal month
for each such fiscal:
Period Amount
------ ------
March $20,000,000
April $20,000,000
May $20,000,000
June $20,000,000
July $20,000,000
August $20,000,000
September $20,000,000
October $20,000,000
November $20,000,000
December $12,500,000
January $15,000,000
February $15,000,000"
5. Consolidated Net Worth. Section 6.20 (b) of the Loan Agreement is
hereby deleted in its entirety and replaced with the following Section 6.20(b)
and a new Section 6.20(c) as follows:
"(b) Hanover shall commencing with the fiscal month ending
April 2000 and for each fiscal month thereafter in any fiscal year
thereafter though and including the fiscal month ending February
2002, maintain Consolidated Net Worth, calculated on a consolidated
basis for Hanover and its Subsidiaries, of not less than the
following amounts as at the end of each such fiscal month for each
such fiscal:
Period Amount
------ ------
March $34,000,000
April $34,000,000
May $34,000,000
June $34,000,000
July $30,000,000
August $30,000,000
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September $30,000,000
October $30,000,000
November $30,000,000
December $37,500,000
January $37,500,000
February $37,500,000
(c) Hanover shall commencing with the fiscal month ending
March 2002 and for each fiscal month thereafter in any fiscal year
thereafter, maintain Consolidated Net Worth, calculated on a
consolidated basis for Hanover and its Subsidiaries, of not less
than the following amounts as at the end of each such fiscal month
for each such fiscal:
Period Amount
------ ------
March $36,000,000
April $35,000,000
May $35,000,000
June $35,000,000
July $35,000,000
August $34,000,000
September $32,500,000
October $32,500,000
November $32,500,000
December $35,000,000
January $37,000,000
February $36,500,000
6. EBITDA. Sections 6.31(c) and 6.31(d) of the Loan Agreement are hereby
deleted in their entirety and replaced with the following:
"(c) Hanover and its Subsidiaries shall not, as to any fiscal
quarter during the fiscal year 2002 of Hanover and its Subsidiaries,
permit EBITDA of Hanover and its Subsidiaries commencing on the
first day of such fiscal year and ending on the last day of the
applicable fiscal quarter set forth below on a cumulative
year-to-date basis ("YTD"), to be less than the respective amount
set forth below opposite such fiscal quarter end YTD period:
Fiscal Quarter
End YTD Periods Cumulative
for Fiscal Year 2002 Minimum EBITDA
-------------------- --------------
(i) December 30, 2001
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Fiscal Quarter
End YTD Periods Cumulative
for Fiscal Year 2002 Minimum EBITDA
-------------------- --------------
through March 30, 2002 ($1,000,000)
(ii) December 30, 2001
through June 29, 2002 $1,200,000
(iii) December 30, 2001
through September 28, 2002 $1,500,000
(iv) December 30, 2001
through December 28, 2002 $7,000,000
(d) Hanover and its Subsidiaries shall not, as to the first
fiscal quarter during the fiscal year 2003 of Hanover and its
Subsidiaries, permit EBITDA of Hanover and its Subsidiaries
commencing on the first day of such fiscal year and ending on the
last day of the first fiscal quarter set forth below on a cumulative
year-to-date basis ("YTD"), to be less than the respective amount
set forth below opposite such fiscal quarter end YTD period:
Fiscal Quarter
End YTD Periods Cumulative
for Fiscal Year 2003 Minimum EBITDA
-------------------- --------------
(i) December 29, 2002 ($1,000,000)
through March 29, 2003
(e) provided, that, as to any applicable period in Section
6.31(a), (b), (c) or (d), to the extent that Hanover and Borrowers
shall have received any cash proceeds from the sale of any Capital
Stock or from the proceeds of loans in respect of any subordinated
indebtedness under the Richemont Credit Facilities other than
proceeds of loans under the Richemont $10,000,000 Credit Agreements,
in each case, to the extent permitted hereunder, then the amount of
such cash proceeds shall be added back to EBITDA for purposes of
determining cumulative EBITDA for the applicable period and for each
subsequent quarterly period during the then-current fiscal year."
7. Amendment Fee. In addition to all other fees, charges, interest and
expenses payable by Borrowers to Lender under the Loan Agreement and the other
Financing Agreements, Borrowers shall pay to Lender the following additional
fees:
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(a) Borrowers shall pay to Lender, contemporaneously herewith, a
closing fee in the amount of $75,000, which fee is fully earned as of the date
hereof and may be charged into the loan account(s) of any Borrower.
(b) Tranche B Term Loan Borrowers shall pay to Lender,
contemporaneously herewith, a closing fee in the amount of $25,000, which fee is
fully earned as of the date hereof and may be charged into the loan account(s)
of any Tranche B Term Loan Borrower.
8. Exhibits.
(a) Exhibits X, X-0, X-0 and C to the Loan Agreement are hereby
deleted in their entirety and replaced with the information set forth on
Exhibits A, X-0, X-0 and C attached hereto.
(b) Exhibit A to the Subsidiary General Security Agreement is hereby
amended to include, in addition and not in limitation, the information set forth
on Exhibit D attached hereto.
9. Representations, Warranties and Covenants. Each Borrower and Guarantor
represents, warrants and covenants with and to Lender as follows, which
representations, warranties and covenants are continuing and shall survive the
execution and delivery hereof, the truth and accuracy of, or compliance with
each, together with the representations, warranties and covenants in the other
Financing Agreements, being a condition of the effectiveness of this Amendment
and a continuing condition of the making or providing of any Revolving Loans or
Letter of Credit Accommodations by Lender to Borrowers:
(a) This Amendment and each other agreement or instrument to be
executed and delivered by the Borrowers or Guarantors hereunder have been duly
authorized, executed and delivered by all necessary action on the part of such
Borrowers and Guarantors which are parties hereto and thereto and, if necessary,
their respective stockholders (with respect to any corporation) or members (with
respect to any limited liability company), and is in full force and effect as of
the date hereof, as the case may be, and the agreements and obligations of
Borrowers and Guarantors, as the case may be, contained herein and therein
constitute legal, valid and binding obligations of Borrowers and Guarantors, as
the case may be, enforceable against them in accordance with their terms.
(b) As of the date hereof, each Borrower and Guarantor is duly
organized and validly existing in good standing under the laws of its State of
incorporation or formation, as applicable.
(c) As of the date hereof, DM Advertising, LLC (i) is duly licensed
or qualified to do business as a foreign limited liability company or foreign
corporation, as the case may be, and is in good standing in each of the
jurisdictions set forth in Exhibit A annexed hereto, which are, as of the date
hereof, the only jurisdictions wherein the character of the properties owned or
licensed or the nature of the business of DM Advertising, LLC, makes such
licensing or
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qualification to do business necessary; and (ii) has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as it is now being conducted and will be conducted in the future.
(d) The assets and properties of each Borrower and Guarantor are
owned by it, free and clear of all security interests, liens and encumbrances of
any kind, nature or description, as of the date hereof, except those security
interests existing in favor of Lender and those granted pursuant hereto in favor
of Lender, and except for Liens (if any) permitted under Section 6.4 of the Loan
Agreement or the other Financing Agreements.
(e) No action of, or filing with, or consent of any governmental or
public body or authority, other than the filing of UCC financing statements, and
no approval or consent of any other party, is required to authorize, or is
otherwise required in connection with, the execution, delivery and performance
of this Amendment.
(f) All of the representations and warranties set forth in the Loan
Agreement as amended hereby, and the other Financing Agreements, are true and
correct in all material respects after giving effect to the provisions of this
Amendment, except to the extent any such representation or warranty is made as
of a specified date, in which case such representation or warranty shall have
been true and correct as of such date.
(g) After giving effect to the provisions of this Amendment, no
Event of Default or Incipient Default exists or has occurred and is continuing.
10. Conditions Precedent. Concurrently with the execution and delivery
hereof (except to the extent otherwise indicated below), and as a further
condition to the effectiveness of this Amendment and the agreement of Lender to
the modifications and amendments set forth in this Amendment:
(a) Lender shall have received a photocopy of an executed original
or executed original counterparts of the following documents by facsimile (with
the originals to be delivered within five (5) Banking Days after the date
hereof), as the case may be:
(i) this Amendment, duly authorized, executed and delivered by
each Borrower and Guarantor; and
(ii) a Guarantee and Waiver, duly authorized, executed and
delivered by DM Advertising, LLC in favor of Lender with respect to the
Obligations of Borrowers under the Financing Agreements;
(b) Lender shall have received, in form and substance satisfactory
to Lender, such UCC financing statements and other documents and instruments, in
each case duly executed (if applicable) and delivered by Borrowers and
Guarantors, which Lender in its sole discretion has
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determined are necessary to perfect the security interests of Lender in all
Collateral now or hereafter owned by DM Advertising, LLC;
(c) Lender shall have received, in form and substance satisfactory
to Lender (i) a copy of the Certificate of Formation or Articles of Organization
of DM Advertising, LLC, and all amendments thereto, certified by the Secretary
of State of its jurisdiction of formation as of the most recent practicable date
certifying that each of the foregoing documents remains in full force and effect
and has not been modified or amended, except as described therein, (ii) a copy
of the Operating Agreement of DM Advertising, LLC, certified by the Secretary or
Assistant Secretary of the company, and (iii) a certificate from the Secretary
or Assistant Secretary of DM Advertising, LLC, dated the date hereof, certifying
that each of the foregoing documents remains in full force and effect and has
not been modified or amended, except as described therein;
(d) Lender shall have received, in form and substance satisfactory
to Lender, evidence, as of the most recent practicable date, that DM
Advertising, LLC is duly qualified and in good standing in each jurisdiction set
forth in Exhibit A annexed hereto;
(e) Lender shall have received, in form and substance satisfactory
to Lender (i) a Management and Incumbency Certificate of DM Advertising, LLC
identifying all managers, officers or other persons authorized to act on its
behalf, (ii) Company Resolutions of DM Advertising, LLC, evidencing the adoption
and subsistence of company resolutions approving the execution, delivery and
performance by DM Advertising, LLC of this Amendment and the agreements,
documents and instruments to be delivered pursuant to this Amendment, in each
case signed by all members of DM Advertising, LLC, and (iii) a Certificate of
the Secretary or Assistant Secretary of DM Advertising, LLC identifying all
members of DM Advertising, LLC;
(f) Lender shall have received written consents from each of the
Participants with respect to the transactions contemplated by this Amendment,
each duly authorized, executed and delivered by such Participants;
(g) Lender shall have received, in form and substance satisfactory
to Lender, an opinion of counsel to Borrowers and Guarantors with respect to the
transactions contemplated by this Amendment, the Guarantee and Waiver and such
other matters as Lender shall reasonably request, addressed to Lender, in form
and substance and satisfactory to Lender; and
(h) Lender shall have received, in form and substance satisfactory
to Lender, a true and correct copy of any consent, waiver or approval to or of
this Amendment, which any Borrower or Guarantor is required to obtain from any
other Person, and such consent, approval or waiver shall be in a form reasonably
acceptable to Lender.
11. Effect of this Amendment. This Amendment constitutes the entire
agreement of the parties with respect to the subject matter hereof, and
supersedes all prior oral or written communications, memoranda, proposals,
negotiations, discussions, term sheets and commitments with respect to the
subject matter hereof. Except as expressly provided herein, no
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other changes or modifications to the Loan Agreement or any of the other
Financing Agreements, or waivers of or consents under any provisions of any of
the foregoing, are intended or implied by this Amendment, and in all other
respects the Financing Agreements are hereby specifically ratified, restated and
confirmed by all parties hereto as of the effective date hereof. To the extent
that any provision of the Loan Agreement or any of the other Financing
Agreements conflicts with any provision of this Amendment, the provision of this
Amendment shall control.
12. Further Assurances. Borrowers and Guarantors shall execute and deliver
such additional documents and take such additional action as may be reasonably
requested by Lender to effectuate the provisions and purposes of this Amendment.
13. Governing Law. The validity, interpretation and enforcement of this
Amendment in any dispute arising out of the relationship between the parties
hereto, whether in contract, tort, equity or otherwise shall be governed by the
internal laws of the State of New York, without regard to any principle of
conflict of laws or other rule of law that would result in the application of
the law of any jurisdiction other than the State of New York.
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14. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
15. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed on the day and year first written.
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx Last
---------------------------------
Title: SVP
------------------------------
HANOVER DIRECT PENNSYLVANIA, INC.
BRAWN OF CALIFORNIA, INC.
GUMP'S BY MAIL, INC.
GUMP'S CORP.
HANOVER DIRECT VIRGINIA INC.
HANOVER REALTY, INC.
THE COMPANY STORE FACTORY, INC.
THE COMPANY OFFICE, INC.
SILHOUETTES, LLC
HANOVER COMPANY STORE, LLC
DOMESTICATIONS, LLC
KEYSTONE INTERNET SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President
------------------------------
By their signatures below, the
undersigned Guarantors
acknowledge and agree to be
bound by the applicable
provisions of this Amendment:
HANOVER DIRECT, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Title: EVP & CFO
----------------------------
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
AMERICAN DOWN & TEXTILE COMPANY
DM ADVERTISING, INC.
KEYSTONE LIQUIDATIONS, INC.
HANOVER HOME FASHIONS GROUP, LLC
ENCORE CATALOG, LLC
CLEARANCE WORLD OUTLETS, LLC
SCANDIA DOWN, LLC
ERIZON, INC.
HANOVER BRANDS, INC.
LA CROSSE FULFILLMENT, LLC
SAN DIEGO TELEMARKETING, LLC
X.X. ADVERTISING, LLC
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Title: Vice President
----------------------------
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