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Exhibit 10.6
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 24, 2000, is by and between
HANOVER DIRECT, INC., a corporation organized under the laws of the State of
Delaware ("Hanover"), 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"), Tweeds, LLC, a Delaware limited liability
company ("Tweed's LLC"), 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"), Hanover Direct Virginia Inc., a Delaware corporation
("HDV"), LWI Holdings, Inc., a Delaware corporation ("LWI"), and Keystone
Internet Services, Inc., a Delaware corporation ("Keystone Internet" which,
collectively with Hanover, HDPI, Brawn, GBM, Gump's, Tweed's LLC, Silhouettes
LLC, HCS LLC, Domesticiations LLC, and HDV, are collectively referred to herein
as the "Borrowers" and each individually, a "Borrower") and RICHEMONT FINANCE
S.A., a societe anonyme organized under the laws of the Grand Duchy of
Luxembourg (the "Lender").
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Defined Terms. As used in this Agreement the following
terms shall have the following respective meanings:
"Advance": As defined in Section 2.1.
"Business Day": Any day (other than a Saturday, Sunday or legal holiday
in the State of New York or in Luxembourg) on which banks are permitted to be
open in the State of New York and in Europe.
"Call Agreement": The letter agreement dated as of the date hereof
between the Lender and the Senior Lender, and agreed to and acknowledged by the
Borrowers, as the same may be amended, modified, supplemented or restated from
time to time.
"Capital Stock": (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalent (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of profits and losses of, or distributions of assets of, the
issuing Person.
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"Closing Date": Any Business Day selected by the Borrowers for the
making of the initial Advance hereunder; provided that all the conditions
precedent to the obligation of the Lender to make the initial Advance, as set
forth in Article III, have been, or, on such Closing Date, will be, satisfied.
The Borrowers shall give the Lender not less than one Business Day's prior
notice of the day selected as the Closing Date.
"Commitment": The obligation of the Lender to make Advances to or for
the account of a Borrower in an aggregate principal amount outstanding at any
time not to exceed the Commitment Amount upon the terms and subject to the
conditions and limitations of this Agreement.
"Commitment Amount": $10,000,000, as the same may be reduced from time
to time pursuant to Section 2.6 hereof.
"Commitment Fees": As defined in Section 2.7.
"Default": Any event which, with the giving of notice (whether such
notice is required under Section 7.1, or under some other provision of this
Agreement, or otherwise) or lapse of time, or both, would constitute an Event of
Default.
"Equity Interests": Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Excess Loan Availability": As defined in the Senior Credit Agreement.
"Existing Note": The Unsecured Line of Credit and Promissory Note dated
March 1, 2000, made by Hanover in favor of the Lender, in the principal amount
of $25,000,000, as said note may be amended, supplemented or restated from time
to time.
"Event of Default": Any event described in Section 7.1.
"GAAP": Generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of any date of
determination.
"Guarantees": The Guarantees, as defined in the Senior Credit
Agreement.
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"Guarantors": The Guarantors as defined in the Senior Credit Agreement.
"Lien": With respect to any Person, any security interest, mortgage,
pledge, lien, charge, encumbrance, title retention agreement or analogous
instrument or device (including the interest of each lessor under any
capitalized lease), in, of or on any assets or properties of such Person, now
owned or hereafter acquired, whether arising by agreement or operation of law.
"Loan Document": This Agreement, the Note, the Existing Note, the Call
Agreement and the Subordination Agreements.
"Maturity Date": The earlier of (a) the date on which the revolving
loan facility under the Senior Credit Agreement is terminated and all
obligations of the Borrowers thereunder have been fully paid, and (b) the date
on which the Commitment Amount is reduced to ZERO.
"Note": As defined in Section 2.3.
"Person": Any natural person, corporation, partnership, limited
partnership, joint venture, firm, association, trust, unincorporated
organization, government or governmental agency or political subdivision or any
other entity, whether acting in an individual, fiduciary or other capacity.
"Revolving Loan Advances": As defined in Section 2.1.
"Senior Credit Agreement": The Loan and Security Agreement dated as of
November 14, 1995, among the Borrowers, certain Affiliates of the Borrowers and
the Lender, as amended and supplemented by the First Amendment to Loan and
Security Agreement, dated February 22, 1996, the Second Amendment to Loan and
Security Agreement, dated April 16, 1996, the Third Amendment to Loan and
Security Agreement, dated May 24, 1996, the Fourth Amendment to Loan and
Security Agreement, dated May 31, 1996, the Fifth Amendment to Loan and Security
Agreement, dated September 11, 1996, the Sixth Amendment to Loan and Security
Agreement, dated as of December 5, 1996, the Seventh Amendment to Loan and
Security Agreement, dated as of December 18, 1996, the Eighth Amendment to Loan
and Security Agreement, dated as of March 26, 1997, the Ninth Amendment to Loan
and Security Agreement, dated as of April 18, 1997, the Tenth Amendment to Loan
and Security Agreement, dated as of October 31, 1997, the Eleventh Amendment to
Loan and Security Agreement, dated as of March 25, 1998, the Twelfth Amendment
to Loan and Security Agreement, dated as of September 30, 1998, the 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, and the Fifteenth Amendment to Loan and Security Agreement dated as of
March 24, 2000.
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"Senior Lender": Congress Financial Corporation, a Delaware
corporation, and its successors and assigns under the Senior Credit Agreement.
"Senior Lender Advances": As defined in Section 2.1.
"Subordination Agreements": Collectively, the $10,000,000 Subordination
Agreement and the $25,000,000 Subordination Agreement.
"Subsidiary": Any corporation or other entity of which securities or
other ownership interests having ordinary voting power for the election of a
majority of the board of directors or other Persons performing similar functions
are owned by the Borrower either directly or through one or more Subsidiaries.
"$10,000,000 Subordination Agreement": The Subordination Agreement
dated as of the date hereof between the Lender and the Senior Lender, and
acknowledged by the Borrowers, providing for, among other things, subordinating
certain payments under this Credit Agreement, as the same may be amended,
modified or supplemented from time to time.
"$25,000,000 Subordination Agreement": The Subordination Agreement
dated as of the date hereof between the Lender and the Senior Lender, and
acknowledged by the Borrowers, providing for, among other things, subordinating
certain payments under the Existing Note, as the same may be amended, modified
or supplemented from time to time.
"Trade Payables Sublimit": At any time, the lesser of (i) $5,000,000
and (ii) the Commitment Amount less $3,000,000.
Section 1.2 Accounting Terms and Calculations. Except as may be
expressly provided to the contrary herein, all accounting terms used herein
shall be interpreted and all accounting determinations hereunder shall be made
in accordance with GAAP.
Section 1.3 Other Definitional Terms, Terms of Construction. The words
"hereof," "herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. References to Sections, Exhibits, Schedules and the
like references are to Sections, Exhibits, Schedules and the like of this
Agreement unless otherwise expressly provided. The words "include," "includes"
and "including" shall be deemed to be followed by the phrase "without
limitation." Unless the context in which used herein otherwise clearly requires,
"or" has the inclusive meaning represented by the phrase "and/or." All
incorporations by reference of covenants, terms, definitions or other provisions
from other agreements are incorporated into this Agreement as if such provisions
were fully set forth herein, and include all necessary definitions and related
provisions from such other agreements. All covenants, terms, definitions and
other provisions from other agreements incorporated into this Agreement by
reference shall survive any
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termination of such other agreements until the obligations of the Borrowers
under this Agreement and the Note are irrevocably paid in full and the
Commitment is terminated.
ARTICLE II
TERMS OF LENDING
Section 2.1 The Revolving Commitment. On the terms and subject to the
conditions hereof, the Lender agrees to make advances (each an "Advance"), (a)
to the Borrowers on a revolving basis ("Revolving Loan Advances"), and (b) to
the Senior Lender for the account of the Borrowers in accordance with the Call
Agreement and Section 2.2(b) hereof ("Senior Lender Advances"), at any time and
from time to time from the Closing Date to the Maturity Date. Until the Maturity
Date, (i) the Borrower may borrow, repay and reborrow Revolving Loan Advances in
accordance with the provisions hereof, and (ii) the Senior Lender may request
payment of Senior Lender Advances for the account of the Borrowers under the
Call Agreement, provided that the unpaid aggregate principal amount of all
outstanding Advances shall not at any time exceed the Commitment Amount at such
time.
Section 2.2 Procedure for Advances.
(a) Procedure for Revolving Loan Advances. Any request by the Borrowers
for an Advance shall be in writing or by telephone and must be given so as to be
received by the Lender not later than 12:00 Noon (New York City time) on the
Business Day prior to requested Advance date. Each request for a Revolving Loan
Advance shall be irrevocable and shall be deemed a representation by the
Borrowers that on the requested Advance date and after giving effect to such
Advance the applicable conditions specified in Article III have been and will
continue be satisfied. Each request for an Advance shall specify (i) the
requested Advance date (which must be a Business Day) and (ii) the amount of
such Advance. Unless the Lender determines that any applicable condition
specified in Article III has not been satisfied, the Lender will make available
to the Borrower or its designee at the Lender's principal office (or if the
$10,000,000 Subordination Agreement is in effect, by wire transfer to the Senior
Lender in accordance with such Subordination Agreement), in immediately
available funds not later than 3:00 p.m. (New York City time) on the requested
Advance date the amount of the requested Advance.
(b) Procedures for Senior Lender Advances. Requests by the Senior
Lender for an Advance for the account of the Borrowers shall be given in the
manner provided for in the Call Agreement, which the Borrowers hereby approve
and authorize. Unless the Lender determines that the requested Senior Loan
Advance either (i) does not meet the requirements of the Call Agreement, or (ii)
exceeds the Commitment Amount then available to be advanced, the Lender will
make the requested Senior Lender Advance to the Senior Lender. In the event the
requested Senior Lender Advance exceeds then available Commitment Amount, the
Lender will make an Advance to the Senior Lender only in the amount of the then
available Commitment Amount.
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In no event will outstanding Advances at any time exceed the Available
Commitment Amount. The Borrowers are jointly and severally liable to the Lender
to reimburse the Lender for any and all Senior Lender Advances and interest
thereon, as if such Advances were made directly to the Borrowers as a Revolving
Loan Advance hereunder.
Section 2.3 The Note. The Advances (including the Borrowers'
reimbursement obligations with respect to any Senior Loan Advances) shall be
evidenced by a single promissory note of the Borrowers (the "Note"),
substantially in the form of Exhibit 2.3 hereto, in the amount of the Commitment
Amount originally in effect. The Lender shall enter in its ledgers and records
the amount of each Advance made and the payments made thereon, and the Lender is
authorized by the Borrower to enter on a schedule attached to the Note a record
of such Advances and payments.
Section 2.4 Interest Rates, Interest Payments and Default Interest.
Interest shall accrue and be payable at a rate equal to 0.125% of the average
monthly unpaid balance of the Note during such month; provided, however, that
upon the happening of any Event of Default, then, at the option of the Lender,
the Note shall thereafter bear interest at the rate specified above, plus 2% per
annum. Interest shall be payable monthly in arrears on the last day of each
month and upon final payment of the Note.
Section 2.5 Repayment and Prepayment. Principal of the Note shall be
payable in full on the Maturity Date. The Borrowers may prepay the Note, in
whole or in part, at any time, without premium or penalty provided that, so long
as the Call Agreement or the $10,000,000 Subordination Agreement is in effect,
the Borrowers shall accompany such optional repayment with a certificate stating
that (a) no "Default" or "Event of Default" (as such terms are defined in the
Senior Credit Agreement) under the Senior Credit Agreement has occurred and is
continuing, and (b) for the 30 consecutive day period preceding the date of such
optional prepayment, Excess Loan Availability was not less than $5,000,000.
Amounts so optionally prepaid under this Section will increase the Commitment
Amount and may be reborrowed as Revolving Loan Advances or be available for
advance to the Senior Lender as Senior Lender Advances, upon the terms and
subject to the conditions and limitations of this Agreement. Principal of this
Note is subject to mandatory prepayment, which amounts may not be reborrowed,
upon mandatory reduction of the Commitment Amount pursuant to Section 2.6.
Section 2.6 Reduction of Commitment Amount.
(a) Mandatory Reduction. The Commitment Amount shall be reduced at the
times of any rights offering by Hanover, Hanover Brands, Inc. or erizon, inc. or
any other equity offering(s) or equity private placement(s) of Capital Stock of
any of such companies after the Closing Date which offering or placement may
take the form, in whole or in part, of a conversion of outstanding Indebtedness
under this Agreement to an Equity Interest of a Borrower or
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Guarantor. The Commitment Amount shall be reduced by the net cash proceeds of
such offering or placement plus the dollar amount of such Indebtedness
converted.
(b) Mandatory Prepayment Upon Reduction of Commitment Amount. Upon any
reduction in the Commitment Amount pursuant to this Section 2.6, the Borrowers
shall pay to the Lender the amount, if any, by which the aggregate unpaid
principal amount of the Note exceeds the Commitment Amount as so reduced.
Amounts so paid cannot be reborrowed. The Borrowers may, at any time, upon not
less than 3 Business Days prior written notice to the Lender, terminate the
Commitment in its entirety provided that the Senior Credit Agreement is
terminated and all obligations of the Borrowers thereunder have been paid. Upon
termination of the Commitment pursuant to this Section, the Borrowers shall pay
to the Lender all unpaid obligations of the Borrowers to the Lender hereunder.
Section 2.7 Commitment Fee. The Borrowers shall pay to the Lender
monthly fees (the "Commitment Fees") in an amount equal to $79,200 per month,
payable monthly in arrears on the last day of each month and on the Maturity
Date.
Section 2.8 Computation. Interest on the Note shall be computed on the
basis of actual days elapsed and a year of 360 days.
Section 2.9 Use of Proceeds. The proceeds of Revolving Loan Advances
shall be used for working capital by the payment of trade creditors in the
ordinary course of business, not to exceed the Trade Payables Sublimit; the
proceeds of Advances may be used to make payments on the Senior Credit Agreement
in accordance with the provisions of the Call Agreement and the Senior Credit
Agreement.
Section 2.10 Conversion. The contribution of cash for an Equity
Interest by the Lender may be contributed, at the Lender's option, by conversion
of all or a designated portion of the principal amount of all Advances made
under the Note and then outstanding into such Equity Interest.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions of Initial Advance. The obligation of the Lender
to make the initial Advance hereunder shall be subject to the prior or
simultaneous fulfillment of each of the following conditions:
(a) Documents. The Lender shall have received the following:
(i) The Note executed by a duly authorized officer (or
officers) of each Borrower and dated the Closing Date.
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(ii) A copy of the corporate or limited liability company
resolutions of each Borrower authorizing the execution, delivery and
performance of the Loan Documents and containing an incumbency
certificate showing the names and titles, and bearing the signatures
of, the officers of such Borrower authorized to execute the Loan
Documents, certified as of the Closing Date by the Secretary or an
Assistant Secretary of each such Borrower.
(iii) A copy of the articles of incorporation or limited
liability company agreement of each Borrower with all amendments
thereto, certified by the appropriate governmental official of the
jurisdiction of its incorporation or formation as of a current date.
(iv) A certificate of good standing for each Borrower in the
jurisdiction of its incorporation or formation, certified by the
appropriate governmental officials as of a current date.
(v) A copy of the bylaws of each corporate Borrower, certified
as of the Closing Date by the Secretary or an Assistant Secretary of
such Borrower.
(vi) The opinion of counsel to the Borrowers covering such
matters as the Lender may reasonably request.
(vii) Copies of the fully executed Senior Credit Agreement and
all related documents, certified as of the Closing Date by the
Secretary or an Assistant Secretary of Hanover.
(b) Other Matters. All organizational and legal proceedings relating to
the Borrowers and all instruments and agreements in connection with the
transactions contemplated by this Agreement shall be satisfactory in scope, form
and substance to the Lender and its counsel, and the Lender shall have received
all information and copies of all documents, including records of corporate
proceedings, which it may reasonably have requested in connection therewith,
such documents where appropriate to be certified by proper Borrower or
governmental authorities.
(c) Fees and Expenses. The Lender shall have received all fees and
other amounts due and payable by the Borrowers on or prior to the Closing Date,
including the reasonable fees and expenses of counsel to the Lender payable
pursuant to Section 8.2.
Section 3.2 Conditions Precedent to all Advances. The Lender shall not
have any obligation to make any Revolving Loan Advance (including Advances after
the initial Advance) hereunder unless all representations and warranties of the
Borrowers made in this Agreement remain true and correct and no Default or Event
of Default exists. The Lender shall not have any
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obligation to make any Senior Lender Advance hereunder or under the Call
Agreement unless the Senior Lender has strictly complied with the requirements
of the Call Agreement.
Section 3.3 Obligations Absolute. The obligations of the Borrowers
under this Agreement shall be absolute, unconditional and irrevocable, and shall
not be subject to any right of setoff or counterclaim and shall be paid or
performed strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including, without limitation, the following
circumstances: (a) any lack of validity or enforceability of the Call Agreement,
the Subordination Agreements, the Senior Credit Agreement or any other related
document; (b) any amendment or waiver of any provision of all or any of the Loan
Documents or the Senior Credit Agreement; (c) the existence of any claim,
setoff, defense or other rights which the Borrowers or any of them may have at
any time against the Senior Lender or the Lender (other than the defense of
payment to the Lender in accordance with the terms of this Agreement)or any
other Person, whether in connection with this Agreement, the Loan Documents, the
Senior Credit Agreement or any transaction contemplated thereby; (d) any request
for payment, demand, statement, certification, determination, calculation or any
other document presented to the Lender under the Call Agreement or the
Subordination Agreement or otherwise proving to be false, forged, fraudulent,
invalid, unauthorized or insufficient in any respect, or any statement therein
being untrue or inaccurate in any respect whatsoever; (e) payment by the Lender
under the Call Agreement upon a request therefor which does not comply with the
terms of the Call Agreement or the Subordination Agreements.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Borrower represents, warrants and covenants to the 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 and warranties and
covenants in the other Loan Documents and in the Senior Credit Agreement (which
are hereby incorporated herein, as if fully set forth herein, and if the Senior
Credit Agreement is terminated, shall continue in the form immediately prior to
such termination) are conditions to the effectiveness of this Agreement and all
Advances:
Section 4.1 Organization, Standing, Etc. Such Borrower is a corporation
or limited liability company (as applicable) duly incorporated or organized and
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has all requisite corporate or limited
liability company power and authority to carry on its business as now conducted,
to enter into this Agreement and to issue the Note and to perform its
obligations hereunder and thereunder. This Agreement, the Note and each other
Loan Document have been duly authorized by all necessary corporate or limited
liability company action and when executed and delivered will be the legal and
binding obligations of such Borrower. The execution and
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delivery of this Agreement, the Note and the other Loan Documents will not
violate such Borrower's organizational documents or any law applicable to such
Borrower. No governmental consent or exemption is required in connection with
such Borrower's execution and delivery of this Agreement and the Note.
Section 4.2 Financial Statements and No Material Adverse Change. The
Borrowers' audited consolidated financial statements as at December 31, 1999, as
heretofore furnished to the Lender, have been prepared in accordance with GAAP.
The Borrowers have no material obligation or liability not disclosed in such
financial statements, and there has been no material adverse change in the
condition of the Borrowers since the dates of such financial statements.
Section 4.3 Year 2000. The Borrowers have reviewed and assessed their
business operations and computer systems and applications to address the Ayear
2000 problem (that is, that computer applications and equipment used by the
Borrowers, directly or indirectly through third parties, may have been or may be
unable to properly perform date-sensitive functions before, during and after
January 1, 2000). The Borrowers represent and warrant that the year 2000 problem
has not resulted in and will not result in a material adverse change in the
Borrowers' business condition (financial or otherwise), operations, properties
or prospects or ability to repay the Lender. The Borrowers agree that this
representation and warranty will be true and correct on and shall be deemed made
by the Borrowers on each date a Borrower requests any Advance under this
Agreement or the Note or delivers any information to the Lender. The Borrowers
will promptly deliver to the Lender such information relating to this
representation and warranty as the Lender requests from time to time.
Section 4.4 Financial Statements, Reports and Notices. The Borrowers
will furnish to the Lender each of the financial statements, reports,
certificates and notices required to be furnished to the Senior Lender under the
Senior Credit Agreement, by the times and in the forms (except addressed to and
for the benefit of the Lender) required to be delivered to the Senior Lender.
Section 4.5 Inspection. The Borrowers will permit any Person designated
by the Lender to visit and inspect any of the properties, books and financial
records of the Borrowers, to examine and to make copies of the books of accounts
and other financial records of the Borrowers, and to discuss the affairs,
finances and accounts of the Borrowers with officers at such reasonable times
and intervals as the Lender may designate.
Section 4.6 Payment. The Borrowers shall cause the net proceeds of any
rights offering or equity offering or private placement referred to in Section
2.6(a) to be paid directly into the Payment Account, as defined in the Call
Agreement.
ARTICLE V
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EVENTS OF DEFAULT AND REMEDIES
Section 5.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default:
(a) Any Borrower shall fail to make when due, whether by acceleration
or otherwise, any payment of principal of or interest on the Note or any other
obligations of the Borrower to the Lender pursuant to this Agreement.
(b) Any representation, warranty or statement of fact made by or on
behalf of a Borrower in this Agreement or by or on behalf of a Borrower in any
certificate, statement, report or document herewith or hereafter furnished to
the Lender at any time is false or misleading in any material respect.
(c) Any Borrower shall breach any of the terms, covenants, conditions
or provisions of this Agreement, any supplement hereto or any other agreement
between Lender and any Borrower or Subsidiary, including any of the other Loan
Documents or any other default or Event of Default occurs or exists under any of
the foregoing.
(d) Any Borrower or any other Person at any time liable on or in
respect of the obligations under this Agreement shall default in the payment of
an amount greater than Two Hundred Fifty Thousand Dollars ($250,000),
individually or in the aggregate, at any time due or any Indebtedness at any
time owing to any Person other than Lender or in the performance of any other
terms or covenants or any evidence of same or other agreement relating thereto
or securing same, or with respect to any material contract, lease (other than
leases under which Hanover, as successor to The Horn & Hardart Company, is the
sole obligor relating to property not used in the business of Borrowers),
license or other obligation owed to any Person other than Lender, which default
continues for more than the applicable cure period, if any, with respect
thereto, but in no event more than thirty (30) days after the occurrence of any
such default.
(e) Any Borrower or any Guarantor having assets in excess of Two
Hundred Fifty Thousand Dollars ($250,000), shall become insolvent, fail to meet
its debts as they mature, call a meeting of creditors or have a creditors'
committee appointed, make an assignment for the benefit of creditors, commence
or have commenced against it any action or proceeding for relief under the U.S.
Bankruptcy Code or any other bankruptcy law or similar statute or statutes
providing for reorganization, adjustment of debts, liquidation or dissolution
(except in the case of any such action or proceeding commenced against any
Borrower or any Guarantor having assets in excess of Two Hundred Fifty Thousand
Dollars ($250,000), such action or proceeding is dismissed within thirty (30)
days from the date such action or proceeding was commenced, unless such Borrower
or Guarantor against whom such action was brought shall acquiesce to the relief
sought or such relief sought is sooner granted; provided, however, that during
such thirty (30) day period Lender shall have no obligation to make or provide
any Advances, except
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pursuant to the Call Agreement, or if any Borrower or any Guarantor having
assets in excess of Two Hundred Fifty Thousand Dollars ($250,000) suspends or
discontinues doing business for any reason (other than as permitted in Section
6.7 hereof), or if a receiver, custodian or trustee of any kind is appointed for
any Borrower or any Guarantor having assets in excess of Two Hundred Fifty
Thousand Dollars ($250,000) or any of their respective properties.
(f) One (1) or more judgments, decrees or orders for the payment of
damages in an amount greater than Two Hundred Fifty Thousand Dollars ($250,000)
in the aggregate at any time shall be issued by one or more courts, governmental
agencies, administrative tribunals or other bodies having jurisdiction against
any Borrower or any Guarantor with assets greater than Two Hundred Fifty
Thousand Dollars ($250,000) and a stay of execution thereof shall not be
procured within thirty (30) days after the date of entry thereof, or such
judgment(s), decree(s) or order(s) shall not be fully bonded within such period
of thirty (30) days, unless sooner enforced.
(g) Any guarantor of any of the obligations of the Borrowers under this
Agreement shall seek to revoke its guaranty or any such guaranty shall become
unenforceable for any reason.
(h) Any default shall occur under the Existing Note.
(i) Any "Event of Default" (as defined in the Senior Credit Agreement)
shall occur under the Senior Credit Agreement.
Section 5.2 Remedies. Except as provided for in the Call Agreement and
the $10,000,000 Subordination Agreement, (a) any Event of Default described in
Sections 5.1 (e), (f) or (g) shall occur with respect to a Borrower or a
Subsidiary, the Commitment shall automatically terminate and the Note and all
other obligations of the Borrowers to the Lender under this Agreement shall
automatically become immediately due and payable, or (b) any other Event of
Default shall occur and be continuing, then the Lender may (i) declare the
Commitment terminated, whereupon the Commitment shall terminate, and (ii)
declare the Note and all other obligations of the Borrowers to the Lender under
this Agreement to be forthwith due and payable, whereupon the same shall
immediately become due and payable, in each case without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived,
anything in this Agreement or in the Note to the contrary notwithstanding. Upon
the occurrence of any of the events described in clauses (a) or (b) of the
preceding sentence the Lender may exercise all rights and remedies under this
Agreement, the Note and any related agreements and under any applicable law.
Section 5.3 Offset. In addition to the remedies set forth in Section
5.2, upon the occurrence of any Event of Default and thereafter while the same
be continuing, the Borrowers hereby irrevocably authorize the Lender to set off
all sums owing by the Borrowers to the Lender
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against all deposits and credits of the Borrowers or any of them, with, and any
and all claims of the Borrowers against, the Lender.
Section 5.4 Subordination Agreement. Anything to the contrary contained
in this Article V notwithstanding, as long as the $10,000,000 Subordination
Agreement and the Call Agreement are in effect, the provisions of the
$10,000,000 Subordination Agreement and the Call Agreement shall govern the
Lender's rights to exercise remedies hereunder.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Modifications. Notwithstanding any provisions to the
contrary herein, any term of this Agreement may be amended with the written
consent of the Borrowers; provided that no amendment, modification or waiver of
any provision of this Agreement or consent to any departure by a Borrower
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Lender, and then such amendment, modifications, waiver or
consent shall be effective only in the specific instance and for the purpose for
which given.
Section 6.2 Costs and Expenses. Whether or not the transactions
contemplated hereby are consummated, the Borrowers agree to reimburse the Lender
upon demand for all reasonable out-of-pocket expenses paid or incurred by the
Lender (including filing and recording costs and fees and expenses of counsel to
the Lender) in connection with the negotiation, preparation, approval, review,
execution, delivery, amendment, modification, interpretation, collection and
enforcement of this Agreement or any other Loan Document and the Existing Note.
The obligations of the Borrowers under this Section shall survive any
termination of this Agreement.
Section 6.3 Waivers, etc. No failure on the part of the Lender or the
holder of the Note to exercise and no delay in exercising any power or right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any power or right preclude any other or further exercise thereof or
the exercise of any other power or right. The rights and remedies of the Lender
hereunder are cumulative and not exclusive of any right or remedy the Lender
otherwise has.
Section 6.4 Notices. Except when telephonic notice is expressly
authorized by this Agreement, any notice or other communication to any party in
connection with this Agreement shall be in writing and shall be sent by manual
delivery, telegram, telex, facsimile transmission, overnight courier or United
States mail (postage prepaid) addressed to such party at the address specified
on the signature page hereof, or at such other address as such party shall have
specified to the other party hereto in writing. All periods of notice shall be
measured from the date of delivery thereof if manually delivered, from the date
of sending thereof if sent by telegram, telex
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or facsimile transmission, from the first Business Day after the date of sending
if sent by overnight courier, or from four days after the date of mailing if
mailed; provided, however, that any notice to the Lender under Article II hereof
shall be deemed to have been given only when received by the Lender.
Section 6.5 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that a Borrower may not assign its rights or
delegate its obligations hereunder without the prior written consent of the
Lender.
SECTION 6.6 GOVERNING LAW AND CONSTRUCTION. THE VALIDITY, CONSTRUCTION
AND ENFORCEABILITY OF THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICT OF
LAWS PRINCIPLES THEREOF.
SECTION 6.7 CONSENT TO JURISDICTION. AT THE OPTION OF THE LENDER, THIS
AGREEMENT AND THE NOTE MAY BE ENFORCED IN ANY FEDERAL COURT OR NEW YORK STATE
COURT SITTING IN NEW YORK, NEW YORK; AND THE BORROWER CONSENTS TO THE
JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN
SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT ANY BORROWER COMMENCES ANY ACTION IN
ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY
OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT, THE LENDER AT ITS
OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
SECTION 6.8 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS AND THE LENDER
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTE AND ANY OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 6.9 Captions. The captions or headings herein and any table of
contents hereto are for convenience only and in no way define, limit or describe
the scope or intent of any provision of this Agreement.
Section 6.10 Entire Agreement. This Agreement and the other Loan
Documents embody the entire agreement and understanding between the Borrowers
and the Lender with
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respect to the subject matter hereof and thereof. This Agreement supersedes all
prior agreements and understandings relating to the subject matter hereof.
Section 6.11 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and either of the parties hereto may execute this Agreement by
signing any such counterpart.
Section 6.12 Joint and Several Obligations; Terms with Respect to
Guaranteed Obligations. Each Borrower shall be jointly and severally liable for
the obligations arising in connection with Advances, and the obligations arising
in connection with Advances made to or for the account of the other Borrowers;
provided, however, that if it is at any time determined that any Borrower is
liable as a guarantor (and not jointly and severally) with respect to such
obligations arising in connection with Advances made to or for the account of
the other Borrowers (the "Guaranteed Obligations"), each Borrower hereby agrees
to the following terms:
(a) Obligations Absolute. No act or thing need occur to establish the
liability of each Borrower for its Guaranteed Obligations, and no act or thing,
except full payment and discharge of all such Guaranteed Obligations, shall in
any way exonerate such Borrower or modify, reduce, limit or release the
liability of such Borrower for its Guaranteed Obligations. The obligations of
each Borrower for its Guaranteed Obligations shall be absolute, unconditional,
and irrevocable, and shall not be subject to any right of setoff or counterclaim
by such Borrower.
(b) Continuing Guaranty. Each Borrower shall be liable for its
Guaranteed Obligations, plus accrued interest thereon and all attorneys' fees,
collection costs and enforcement expenses referable thereto. Guaranteed
Obligations may be created and continued in any amount without affecting or
impairing the liability of such Borrower therefor. No notice of such Guaranteed
Obligations already or hereafter contracted or acquired by the Lender, or any
renewal or extension of any thereof need be given to such Borrower and none of
the foregoing acts shall release such Borrower from liability hereunder. The
agreement of each Borrower pursuant to this Agreement with respect to its
Guaranteed Obligations is an absolute, unconditional and continuing guaranty of
payment of such Guaranteed Obligations and shall continue to be in force and be
binding upon such Borrower until such Guaranteed Obligations are paid in full
and this Agreement is terminated, and the Lender may continue, at any time and
without notice to such Borrower, to extend credit or other financial
accommodations and loan monies to or for the benefit of the other Borrowers on
the faith thereof. Each Borrower hereby waives, to the fullest extent permitted
by law, any right it may have to revoke or terminate its guaranty of the
Guaranteed Obligations before the Guaranteed Obligations are paid in full and
this Agreement is terminated. In the event any Borrower shall have any right
under applicable law to otherwise terminate or revoke its guaranty of the
Guaranteed Obligations which cannot be waived, such termination or revocation
shall not be effective until written notice of such termination or revocation,
signed by such Borrower, is actually received by the Lender's officer
responsible for such matters. Any notice of termination or revocation described
above shall not
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affect such Borrower's guaranty of the Guaranteed Obligations in relation to (i)
any of the Guaranteed Obligations that arose prior to receipt thereof or (ii)
any of the Guaranteed Obligations created after receipt thereof, if such
Guaranteed Obligations were incurred either through loans by the Lender or
letters of credit issued by the Lender pursuant to its existing financing
arrangements with the other Borrowers, including, without limitation, advances,
readvances or letters of credit in an aggregate outstanding amount not to exceed
the aggregate amount of the Revolving Commitment as of the time such notice of
termination or revocation was received, including, but not limited, to all
protective advances, costs, expenses, and attorneys' and paralegals' fees,
whensoever made, advanced or incurred by the Lender in connection with the
Guaranteed Obligations. If, in reliance on any Borrower's guaranty of its
Guaranteed Obligations, the Lender makes loans or other advances to or for the
benefit of the other Borrower or takes other action under this Agreement after
such aforesaid termination or revocation by the undersigned but prior to the
receipt by the Lender of said written notice as set forth above, the rights of
the Lender shall be the same as if such termination or revocation had not
occurred.
(c) Other Transactions. Whether or not any existing relationship
between the Borrowers has been changed or ended, the Lender may, but shall not
be obligated to, enter into transactions resulting in the creation or
continuance of other obligations of any Borrower to the Lender, without consent
or approval by the other Borrowers and without notice to the other Borrowers,
and all such obligations shall be guaranteed by virtue of this Agreement. The
liability of the Borrowers under this Agreement with respect to the Guaranteed
Obligations shall not be affected or impaired by any of the following acts or
things (which the Lender is expressly authorized to do, omit or suffer from time
to time, without notice to or approval by the Borrowers): (i) any acceptance of
collateral security, other guarantors, accommodation parties or sureties for any
or all Guaranteed Obligations; (ii) any one or more extensions or renewals of
Guaranteed Obligations (whether or not for longer than the original period) or
any modification of the interest rates, maturities or other contractual terms
applicable to any Guaranteed Obligations; (iii) any waiver or indulgence granted
to the other Borrowers, any delay or lack of diligence in the enforcement of
Guaranteed Obligations, or any failure to institute proceedings, file a claim,
give any required notices or otherwise protect any Guaranteed Obligations; (iv)
any full or partial release of, settlement with, or agreement not to sue, any
other Borrower or any other guarantor or other person liable in respect of any
Guaranteed Obligations; (v) any discharge of any evidence of Guaranteed
Obligations or the acceptance of any instrument in renewal thereof or
substitution therefor; (vi) any failure to obtain collateral security for
Guaranteed Obligations, or to see to the proper or sufficient creation and
perfection thereof, or to establish the priority thereof, or to protect, ensure,
or enforce any collateral security, or any modification, substitution,
discharge, impairment or loss of any collateral security; (vii) any foreclosure
or enforcement of any collateral security; (viii) any transfer of any Guaranteed
Obligations or any evidence thereof; (ix) any order of application of any
payments or credits upon Guaranteed Obligations; (x) any release of any
collateral security for Guaranteed Obligations; (xi) any amendment to or
modification of, any agreement between the Lender and any other Borrower, or
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any waiver of compliance by any other Borrower with the terms thereof; and (xii)
any election by the Lender under Section 1111(b) of the United States Bankruptcy
Code.
(d) Waivers of Defenses and Rights. Each Borrower waives any and all
defenses, claims and discharges of the other Borrowers, or any other obligor,
pertaining to the Guaranteed Obligations, except the defense of discharge by
payment in full. Without limiting the generality of the foregoing, no Borrower
will assert, plead or enforce against the Lender any defense of waiver, release,
discharge in bankruptcy, statute of limitations, res judicata, statute of
frauds, anti-deficiency statute, fraud, usury, illegality or unenforceability
which may be available to any other Borrower or any other person liable in
respect of any Guaranteed Obligations, or any setoff available against the
Lender to any other Borrower or any such other person, whether or not on account
of a related transaction. Each Borrower waives presentment, demand for payment,
notice of dishonor or nonpayment, and protest of any instrument evidencing
Guaranteed Obligations. Each Borrower agrees that its liability under this
Agreement for the Guaranteed Obligations shall be primary and direct, and that
the Lender shall not be required first to resort for payment of the Guaranteed
Obligations to the other Borrower or other persons or their properties, or first
to enforce, realize upon or exhaust any collateral security for the Guaranteed
Obligations, or to commence any action or obtain any judgment against any other
Borrower or against any such collateral security or to pursue any other right or
remedy the Lender may have against any other Borrower before enforcing the
liability of such Borrower for the Guaranteed Obligations under this Agreement.
(e) Approval of Credit. Each of the Borrowers has, independently and
without reliance upon the Lender or the directors, officers, agents or employees
of the Lender, and instead in reliance upon information furnished by the other
Borrowers and upon such other information as such Borrower deemed appropriate,
made its own independent credit analysis and decision to guaranty the
obligations of the other Borrowers pursuant to this Agreement.
(f) Waiver of Subrogation. Each Borrower expressly waives any and all
rights of subrogation, reimbursement, indemnity, exoneration, contribution or
any other claim which it may now or hereafter have against the other Borrowers,
any endorser or any other guarantor of all or any part of the Guaranteed
Obligations, and each Borrower hereby waives any benefit of, and any right to
participate in, any security or collateral given to the Lender to secure payment
of the Guaranteed Obligations or any other liability of the other Borrowers to
the Lender. Each Borrower further agrees that any and all claims it may have
against the other Borrowers, any endorser or any other guarantor of all or any
part of the Guaranteed Obligations or against any of their respective
properties, whether arising by reason of any payment by such Borrower to the
Lender pursuant to the provisions hereof or otherwise, is hereby waived.
Section 6.13 Indemnification. Each Borrower hereby jointly and
severally indemnified and holds harmless the Lender from and against any and all
claims, damages, losses, liabilities, reasonable costs or expenses whatsoever
(including attorneys fees) which the Lender may incur
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(or which may be claimed against the Lender by any Person whatsoever) by reason
of or in connection with the execution and delivery or assignment or transfer
of, or payment or failure to make payment under , the Call Agreement or the
Subordination Agreements; provided that the Borrowers shall not be required to
indemnify the Lender for any claims , damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by the wilful misconduct
or gross negligence of the Lender. Nothing in this Section 6.13 is intended to
limit the obligations of the Borrowers to pay or reimburse the Lender otherwise
contained in this Agreement.
Section 6.14 Liability of the Lender. As between the Lender and the
Borrowers, the Borrowers assume all risks of the acts or omissions of the Senior
Lenders with respect to its use of the Call Agreement. Neither the Lender nor
any of its affiliates, or officers or directors, shall be liable or responsible
for: (a) the use which may be made of the proceeds of any Advance by the
Borrowers or the Senior Lender or any other Person or for any acts or omissions
of the Senior Lender in connection therewith; (b) the validity, sufficiency or
genuineness of any notices, demands, requests, statements, certificates or
documents even if such communications or documents should in fact rove to be in
any or all respects invalid, insufficient, fraudulent or forged; or (c) any
other circumstances whatsoever in making or failing to make payment under the
Call Agreement, except only that the Borrowers shall have a claim against the
Bank , and the Lender shall be liable to the Borrowers, to the extent but only
to the extent of any direct, as opposed to consequential damages suffered by the
Borrowers or any of them which the Borrowers prove, by clear and convincing
evidence, were caused by the Lender's willful misconduct or gross negligence in
determining whether under the Call Agreement the terms of the Call Agreement
were satisfied by the Senior Lender. In furtherance and not in limitation of the
foregoing, the Lender may accept communications and documents from the Senior
Lender that appear to be in order, and may assume that the statements made
thereunder are accurate, without responsibility for further investigation (and
without notice to or consent by the Borrowers).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
Address: HANOVER DIRECT, INC.
1500 Harbor Boulevard
Weehawken, New Jersey 07087
By /s/ Brian C. Harris
-----------------------------------
Fax:
--------------------------------
Title Senior Vice President
--------------------------------
Address: HANOVER DIRECT PENNSYLVANIA, INC.
500 Harbor Boulevard
Weehawken, New Jersey 07087
By /s/ Brian C. Harris
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
Address: BRAWN OF CALIFORNIA, INC.
741 "F" Street
San Diego, California
By /s/ Brian C. Harriss
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
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Address: GUMPS BY MAIL, INC.
1500 Harbor Boulevard
Weehawken, New Jersey 07087
By /s/ Brian C. Harriss
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
Address: GUMP'S CORP.
135 Post Street
San Francisco, California
By /s/ Brian C. Harriss
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
Address: TWEEDS, LLC
1500 Harbor Boulevard
Weehawken, New Jersey 07087
By /s/ Brian Harriss
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
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Address: SILHOUETTES, LLC
1500 Harbor Boulevard
Weehawken, New Jersey 07087
By /s/ Brian C. Harriss
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
Address: HANOVER COMPANY STORE, LLC
1500 Harbor Boulevard
Weehawken, New Jersey 07087
By /s/ Brian C. Harriss
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
Address: DOMESTICATIONS, LLC
1500 Harbor Boulevard
Weehawken, New Jersey 07087
By /s/ Brian C. Harriss
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
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Address: HANOVER DIRECT VIRGINIA INC.
1500 Harbor Boulevard
Weehawken, New Jersey 07087
By /s/ Brian C. Harriss
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
Address: LWI HOLDINGS, INC.
23297 Commerce Pkwy
Beachwood, Ohio
By /s/ Brian C. Harriss
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
Address: KEYSTONE INTERNET SERVICES, INC.
1500 Harbor Boulevard
Weehawken, New Jersey 07087
By /s/ Brian C. Harriss
-----------------------------------
Fax:
--------------------------------
Title Vice President
--------------------------------
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RICHEMONT FINANCE S.A.
By /s/ Jan du Plessis
------------------------------------
Print Name Jan du Plessis
--------------------------
Title Director
-------------------------------
By /s/ Alan Grieve
------------------------------------
Print Name Alan Grieve
--------------------------
Title Director
-------------------------------
Lender's Address:
Richemont Finance, S.A.
35 Boulevard, Prince Henri
L1724 Luxembourg
Attention: General Manager
Fax : 011-352 22 42 19
Phone: 011 352 22 42 10
with a copy to:
Richemont Finance S.A.
Rigistrasse 2
Zug 6300
Switzerland
Attention: Mr. J. Alan Grieve
Fax: 011-4141-711-7138
Phone: 011-4141-710-3322
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