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Exhibit 10.60
HANOVER DIRECT, INC.
PROMISSORY NOTE
$10,000,000 New York, New York
September 9, 1996
FOR VALUE RECEIVED, the undersigned, HANOVER DIRECT, INC., a
Delaware corporation ("Borrower"), promises to pay to the order of
INTERCONTINENTAL MINING & RESOURCES INCORPORATED, or its assigns ("Lender"), on
or before the Maturity Date referred to below, TEN MILLION DOLLARS
($10,000,000), or such lesser amount as shall then be outstanding under this
Note as evidenced by Lender's record of the loans made hereunder, together with
interest (computed on the basis of a 360-day year and actual days elapsed) (i)
on the unpaid principal amount hereof from the date hereof until the loans
evidenced hereby are paid in full, payable on the Maturity Date, at the rate of
1.5% per annum in excess of the prime commercial interest rate announced from
time to time by CoreStates Bank, N.A., or such other rate as shall then be
charged on term loans made to Borrower's affiliates under the Loan and Security
Agreement, dated as of November 14, 1995 (the "Congress facility"), between
Borrower's affiliates and Congress Financial Corporation, and (ii) to the extent
permitted by law, on any overdue payment of principal, interest or premium, if
any, on this Note, payable on demand, at a rate per annum equal to 3.5% per
annum in excess of the prime commercial interest rate announced from time to
time by CoreStates Bank, N.A., or such other default rate as shall then be
charged on term loans made to Borrower's affiliates under the Congress facility.
In addition to interest on this Note, Borrower shall pay together with such
interest an amount sufficient to enable Lender and/or its affiliates to pay
taxes, if any, required to be paid by Lender or its affiliates in respect of
interest on this Note or on intercompany loans made to facilitate the loan
evidenced by this Note.
All outstanding principal and interest not previously paid shall be
due and payable in full on the date (the "Maturity Date") which is the later to
occur of November 14, 1996 and the date on which, after giving effect to the
payment of the loan represented by this Note, there is at least $2,500,000 in
additional borrowings available to the Borrower's affiliates under the Congress
facility; provided, however, that all outstanding principal and interest not
previously paid shall be due and payable in full on the business day immediately
following payment in full of all Obligations of the Borrower's affiliates under
and as defined in the Congress facility. Principal and interest on this Note are
payable in lawful currency of the United States of America to the Lender at its
principal office at 127 East 73rd Street, New York, New York, or at such other
place as may be designated by Lender, in same day funds.
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A. Representations and Warranties.
1. Borrower is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation. Borrower has
the corporate power and authority to execute and deliver this Note and to
perform its obligations hereunder.
2. This Note has been duly authorized by all necessary corporate
action on the part of Borrower, and this Note constitutes a legal, valid and
binding obligation of Borrower enforceable against Borrower in accordance with
its terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3. The execution, delivery and performance by Borrower of this Note
will not (i) violate, or result in the creation of any lien in respect of any
property of Borrower under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument by which Borrower is bound, (ii) conflict with or result
in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or governmental authority
applicable to Borrower or (iii) violate any provision of any statute or other
rule or regulation of any governmental authority applicable to Borrower.
4. No approval, consent, waiver, authorization, registration,
declaration or filing by, from or with any governmental authority or other
person or entity is required in connection with the execution, delivery or
performance by Borrower of this Note.
B. Covenants
1. Borrower shall at all times maintain its corporate existence and
shall not merge or consolidate with any other entity (unless Borrower shall be
the survivor) without Lender's consent.
2. Borrower shall provide to Lender such information about its
assets, liabilities and business as Lender shall from time to time reasonably
request, including, without limitation, financial statements of Borrower and its
subsidiaries.
C. Events of Default
An "Event of Default" shall exist under this Note if any of the
following conditions or events shall occur and be continuing:
(a) Borrower defaults in the payment of any principal or interest on
this Note when the same becomes due and payable, whether at maturity or by
declaration or otherwise; or
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(b) Borrower defaults in the performance of any other obligation
hereunder or any representation or warranty made by Borrower in this Note
proves to have been false or incorrect in any material respect on the date
as of which made; or
(c) Borrower (i) is unable to pay, or admits in writing its inability
to pay, its debts as they become due, (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction, (iii)
makes an assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its
property, (v) is adjudicated as insolvent or to be liquidated, or (vi)
takes corporate action for the purpose of any of the foregoing; or
(d) a court or governmental authority of competent jurisdiction enters
an order appointing, without consent by Borrower, a custodian, receiver,
trustee or other officer with similar powers with respect to it or with
respect to any substantial part of its property, or constituting an order
for relief or approving a petition for relief or reorganization or any
other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of Borrower, or any such petition
shall be filed against Borrower.
Upon the occurrence of an Event of Default, Lender may, at its
option, declare the entire unpaid principal balance of, and all accrued interest
on, this Note to be immediately due and payable. If an Event of Default
described in paragraph (c) or (d) above has occurred, this Note shall
automatically become immediately due and payable. Upon this Note becoming due
and payable, whether automatically or by declaration, this Note will forthwith
mature and the entire unpaid principal amount hereof, plus all accrued and
unpaid interest hereon, shall all be immediately due and payable, in each and
every case without presentment, demand, protest or further notice, all of which
are hereby waived.
In addition to the foregoing, Lender may proceed to protect and
enforce its rights hereunder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement
contained herein, or for an injunction against a violation of any of the terms
hereof or thereof, or in aid of the exercise of any power granted hereby or by
law or otherwise.
Lender or its assignee may assign this Note to any person or entity
without Borrower's consent.
Failure of Lender to exercise any of its rights and remedies shall
not constitute a waiver of the right to exercise the same at that or any other
time. All rights and remedies of Lender
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shall be cumulative to the full extent permitted by law.
The invalidity or unenforceability of any provision of this Note
shall not impair the validity or enforceability of any other provision of this
Note.
[Signature page follows.]
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THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW
PROVISIONS.
HANOVER DIRECT, INC.
By:____________________________________
Name:
Title:
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