EXHIBIT 10.47
[Execution Version]
TWENTY-FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS TWENTY-FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of February __, 2003, is entered into by and among
CONGRESS FINANCIAL CORPORATION, a Delaware corporation ("Lender"), 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 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"), KEYSTONE INTERNET SERVICES,
LLC, a Delaware limited liability company ("KIS LLC"), and THE COMPANY STORE
GROUP, LLC, a Delaware limited liability company ("CSG LLC"; and together with
Brawn, GBM, Gump's, Hanover Realty, TCS Factory, TCS Office, Silhouettes LLC,
HCS LLC, Domestications LLC and KIS LLC, collectively, "Borrowers" and each
individually, a "Borrower"), HANOVER DIRECT, INC., a Delaware corporation
("Hanover"), HANOVER HOME FASHIONS GROUP, LLC, a Delaware limited liability
company ("HHFG LLC"), CLEARANCE WORLD OUTLETS, LLC, a Delaware limited liability
company ("Clearance World"), SCANDIA DOWN, LLC, a Delaware limited liability
company ("Scandia Down LLC"), LACROSSE FULFILLMENT, LLC, a Delaware limited
liability company ("LaCrosse LLC"), D.M. ADVERTISING, LLC, a Delaware limited
liability company ("DM Advertising LLC"), AMERICAN DOWN & TEXTILE, LLC, a
Delaware limited liability company ("ADT LLC"), and HANOVER GIFTS, INC., a
Virginia corporation ("Hanover Gifts"; and together with Hanover, HHFG LLC,
Clearance World, Scandia Down LLC, LaCrosse LLC, DM Advertising LLC and ADT LLC,
collectively, "Guarantors" and each individually, a "Guarantor").
W I T N E S S E T H:
WHEREAS, Borrowers, Guarantors and Lender are parties to the Loan and
Security Agreement, dated November 14, 1995, as amended 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, the Fourteenth Amendment to Loan and Security Agreement, dated as of
February 28, 2000, the Fifteenth Amendment to Loan and Security Agreement, dated
as of March 24, 2000, the Sixteenth Amendment to Loan and Security Agreement,
dated as of August 8, 2000, the Seventeenth Amendment to Loan and Security
Agreement, dated as of January 5, 2001, the Eighteenth Amendment to Loan and
Security Agreement, dated as of November 12, 2001, the Nineteenth Amendment to
Loan and Security Agreement, dated as of December 18, 2001 (the "Nineteenth
Amendment to Loan Agreement"), the Twentieth Amendment to Loan and Security
Agreement, dated as of March 5, 2002, the Twenty-First Amendment to Loan and
Security Agreement, dated as of March 21, 2002, the Twenty-Second Amendment to
Loan and Security Agreement, dated as of August 16, 2002, and the Twenty-Third
Amendment to Loan and Security Agreement (the "Twenty-Third Amendment to Loan
Agreement"), dated as of December 27, 2002 (as so amended, the "Loan
Agreement"), pursuant to which Lender has made loans and advances to Borrowers;
WHEREAS, in accordance with Section 12 of the Twenty-Third Amendment
to Loan Agreement, Borrowers and Guarantors have agreed to deliver to Lender an
amendment to the Event of Default arising from a change of control, and to
deliver certain information and schedules related to Borrowers and Guarantors as
required by the Twenty-Third Amendment to Loan and Security Agreement; and
WHEREAS, the parties hereto desire to enter into this Amendment to
evidence and effectuate such amendments and to effect such deliveries, 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.
(a) Additional Definitions. As used herein or in any of
the other Financing Agreements, the following terms shall have the meanings
given to them below, and the Loan Agreement shall be deemed and is hereby
amended to include, in addition and not in limitation, the following
definitions:
(i) "Change of Control" shall mean: (a) other
than transfers of assets permitted in accordance with the terms and conditions
of Section 3 of the Nineteenth Amendment to Loan Agreement, the transfer (in one
transaction or a series of transactions) of all or substantially all of the
assets of any Borrower or Guarantor to any Person or group (as such term is used
in Section 13(d)(3) of the Securities Exchange Act of 1934); (b) the liquidation
or dissolution of any Borrower or Guarantor or the adoption of a plan by the
stockholders of any Borrower or Guarantor relating to the dissolution or
liquidation of such Borrower or Guarantor; (c) the acquisition by any Person or
group (as such term is used in Section 13(d)(3) of the Securities Exchange Act
of 1934), except for one or more Permitted Holders, of beneficial ownership,
directly or indirectly, of a majority of the voting power of the total
outstanding voting stock or shares or interests of Hanover or the Board of
Directors of
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Hanover; (d) during any period of two (2) consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of Hanover
(together with any new directors who have been appointed by any Permitted
Holder, or whose nomination for election by the stockholders of Hanover was
approved by a vote of at least sixty-six and two-thirds (66 2/3%) percent of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason (other than by reason of death or disability) to
constitute a majority of the Board of Directors of Hanover then still in office;
or (f) other than transfers of assets permitted in accordance with the terms and
conditions of Section 3 of the Nineteenth Amendment to Loan Agreement, the
failure of Hanover to own directly or indirectly one hundred (100%) percent of
the voting power of the total outstanding voting stock or shares or interests of
any Borrower or Guarantor (other than Hanover).
(ii) "Permitted Holders" shall mean,
collectively, the persons listed on Exhibit A hereto and their respective
successors and assigns; each sometimes being referred to individually as a
"Permitted Holder".
(b) Interpretation. All capitalized terms used herein and
not defined herein shall have the meanings given to such terms in the Loan
Agreement.
2. Events of Default. Section 7.1(j) of the Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"(j) any Change of Control."
3. Delivery of Schedules.
(a) Schedules 1(a)(ii) and 1(a)(xxxi) to the Twenty-Third
Amendment to Loan Agreement are hereby deleted and replaced with the information
set forth on Schedules 1(a)(ii) and 1(a)(xxxi) attached hereto.
(b) Schedule 2(b) to the First Amendment to General
Security Agreement, dated as of December 27, 2002, by and among HHFG LLC,
Clearance World, Scandia Down LLC, LaCrosse LLC, DM Advertising LLC, ADT LLC,
Hanover Gifts and Lender is hereby deleted and replaced with the information set
forth on Schedule 2(b) attached hereto.
(c) Schedule 2(b) to the First Amendment to General
Security Agreement, dated as of December 27, 2002, by and between Hanover and
Lender is hereby deleted and replaced with the information set forth on Schedule
2(b) attached hereto.
(d) Schedule 7(b) to the Twenty-Third Amendment to Loan
Agreement is hereby deleted and replaced with the information set forth on
Schedule 7(b) attached hereto.
4. Extension of Time to Deliver Certain Post-Closing Items.
Paragraphs 1(c), 1(d) and 1(e) of the letter agreement, dated as of December 27,
2002, among Lender, Borrowers and Guarantors Re:
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Certain Post-Closing Items as to the time period in which Borrower is required
to deliver or take the action described in each such paragraph, are each hereby
amended by replacing the time period "on or before January 31, 2003" in each
such paragraph with the following: "on or before February 28, 2003".
5. Representations, Warranties and Covenants. Each Borrower and
Guarantor represents, warrants and covenants with, to and in favor of 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 Borrowers or Guarantors hereunder have been duly
authorized, executed and delivered by all necessary action on the part of
Borrowers and Guarantors which is a party 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 or 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) No action of, or filing with, or consent of any
governmental or public body or authority, and no approval or consent of any
other party, including, without limitation, Richemont is required to authorize,
or is otherwise required in connection with, the execution, delivery and
performance of this Amendment.
(c) 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.
(d) Promptly but by no later than March 21, 2003, Lender
shall have received, in form and substance satisfactory to Lender, (i) a pledge
and security agreement, in form and substance satisfactory to Lender, by each of
Hanover and CSG LLC, granting to Lender a pledge of and lien on all of the
issued and outstanding shares of capital stock (or interests in limited
liability companies) of their respective Subsidiaries that are Borrowers or
Guarantors, (ii) the original stock certificates evidencing such shares of
capital stock (or such other evidence, if any, as may be issued in the case of a
limited liability company), together with stock powers with respect thereto duly
executed in blank (or the equivalent thereof in the case of a limited liability
company in which such interests are certificated, or otherwise take such actions
as Lender shall reasonably require with respect to Lender's security interests
therein), and (iii) evidence of the adoption of corporate resolutions (or
company action in the case of a limited liability company), approving the
execution, delivery and performance by Hanover and
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CSG LLC of such pledge and security agreements, together with an opinion of
counsel of Hanover and CSG LLC with respect to the enforceability of such
agreements.
(e) After giving effect to the provisions of this
Amendment, no Event of Default or Incipient Default exists or has occurred and
is continuing.
6. 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, in form and substance
satisfactory to Lender, a photocopy of an executed original or executed original
counterparts of this Amendment by facsimile (with the originals to be delivered
within five (5) Banking Days after the date hereof), as the case may be, duly
authorized, executed and delivered by each Borrower and Guarantor; and
(b) each Borrower and Guarantor shall deliver, or cause
to be delivered, 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, including without limitation Richemont, and such
consent, approval or waiver shall be in a form reasonably acceptable to Lender.
7. Effect of this Amendment. Effective as of January 31, 2003, by
reason of the execution and delivery of this Amendment, Section 12 of the
Twenty-Third Amendment shall be deemed satisfied. 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 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 of this Amendment. 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.
8. 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.
9. 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.
10. Binding Effect. This Amendment shall be binding upon and inure
to the benefit of each of
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the parties hereto and their respective successors and assigns.
11. 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/ Eric Storz
---------------------------
Title: AVP
BRAWN OF CALIFORNIA, INC.
By: /s/ Steven Seymour
----------------------------
Name: Steven Seymour
Title: President
GUMP'S BY MAIL, INC.
By: /s/ Jed Pogran
----------------------------
Name: Jed Pogran
Title: President
GUMP'S CORP.
By: /s/ Jed Pogran
----------------------------
Name: Jed Pogran
Title: President
HANOVER REALTY, INC.
By: /s/ Doug Mitchell
----------------------------
Name: Doug Mitchell
Title: President
THE COMPANY STORE FACTORY, INC.
By: /s/ David Pipkorn
----------------------------
Name: David Pipkorn
Title: President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
THE COMPANY OFFICE, INC.
By: /s/ David Pipkorn
-----------------------------
Name: David Pipkorn
Title: President
SILHOUETTES, LLC
By: /s/ Edward M. Lambert
-----------------------------
Name: Edward M. Lambert
Title: President
HANOVER COMPANY STORE, LLC
By: /s/ Edward M. Lambert
-----------------------------
Name: Edward M. Lambert
Title: President
DOMESTICATIONS, LLC
By: /s/ Edward M. Lambert
-----------------------------
Name: Edward M. Lambert
Title: Vice President
KEYSTONE INTERNET SERVICES, LLC
By: /s/ Edward M. Lambert
-----------------------------
Name: Edward M. Lambert
Title: Vice President
THE COMPANY STORE GROUP, LLC
By: /s/ Edward M. Lambert
-----------------------------
Name: Edward M. Lambert
Title: President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
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/ Edward M. Lambert
-----------------------------
Name: Edward M. Lambert
Title: Executive Vice President and
Chief Financial Officer
HANOVER HOME FASHIONS GROUP, LLC
By: /s/ Edward M. Lambert
-----------------------------
Name: Edward M. Lambert
Title: Vice President
CLEARANCE WORLD OUTLETS, LLC
By: /s/ Edward M. Lambert
-----------------------------
Name: Edward M. Lambert
Title: President
SCANDIA DOWN, LLC
By: /s/ David Pipkorn
-----------------------------
Name: David Pipkorn
Title: President
LA CROSSE FULFILLMENT, LLC
By: /s/ Edward M. Lambert
-----------------------------
Name: Edward M. Lambert
Title: President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
D.M. ADVERTISING, LLC
By: /s/ Edward M. Lambert
-----------------------------
Name: Edward M. Lambert
Title: President
AMERICAN DOWN & TEXTILE, LLC
By: /s/ David Pipkorn
-----------------------------
Name: David Pipkorn
Title: President
HANOVER GIFTS, INC.
By: /s/ Doug Mitchell
-----------------------------
Name: Doug Mitchell
Title: President
EXHIBIT A
TO
TWENTY-FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
List of Permitted Holders
Richemont Finance S.A. and its Subsidiaries
Basil P. Regan, or Regan Partners L.P. and its Subsidiaries