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EXHIBIT 10.44
FIRST AMENDMENT
TO
REIMBURSEMENT AGREEMENT
FIRST AMENDMENT, dated as of February 18, 1998 ("First
Amendment"), by and between SWISS BANK CORPORATION, a banking corporation
organized under the laws of Switzerland and whose principal office is located in
Basel, Switzerland, acting through its Stamford Branch and HANOVER DIRECT, INC.,
a Delaware corporation having its principal place of business in Weehawken, New
Jersey (the "Borrower"). Capitalized terms used but not defined herein have the
meanings given to them in the Reimbursement Agreement referred to below.
WHEREAS, Swiss Bank Corporation, New York Branch and the
Borrower were parties to that certain Reimbursement Agreement, dated as of
December 18, 1996 (the "Reimbursement Agreement");
WHEREAS, Swiss Bank Corporation, New York Branch subsequently
transferred all of its rights and obligations under the Reimbursement Agreement
to Swiss Bank Corporation, Stamford Branch and Swiss Bank Corporation, Stamford
Branch assumed all of the obligations of Swiss Bank Corporation, New York Branch
under the Reimbursement Agreement;
WHEREAS, Swiss Bank Corporation, Stamford Branch (hereinafter
referred to as the "Bank") and the Borrower wish to amend the Reimbursement
Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto hereby agree as follows:
1. As of the date hereof, the Reimbursement Agreement is
hereby amended as follows:
(a) All references throughout the Reimbursement Agreement to
"Swiss Bank Corporation, New York Branch" are hereby amended to read "Swiss Bank
Corporation, Stamford Branch."
(b) The reference to "New York Branch" located in the seventh
and eighth lines of the preamble on page 1 of the Reimbursement Agreement is
hereby amended to read "Stamford Branch."
(c) Section 1.01 of the Reimbursement Agreement is hereby
amended by (i) adding the language ", or any substitute letter of credit that
may be issued on substantially the same terms by the Bank as replacement
therefor, as the same may be amended, supplemented, modified, extended or
restated hereafter" prior to the semicolon at the end of the definition of
"Hanover House LC", (ii) adding the language ", as the same may be amended,
supplemented, modified, extended or restated hereafter" prior to the semicolon
at the end of the definition of
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"Hanover Series A Letter of Credit", (iii) adding the language ", as the same
may be amended, supplemented, modified, extended or restated hereafter" prior to
the semicolon at the end of the definition of "Hanover Series B Letter of
Credit", (iv) deleting the language "Swiss Bank Corporation, New York Branch, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000" from the definition of "Principal
Office" and substituting in its place the following language: "Swiss Bank
Corporation, Stamford Branch, 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000-0000", and (v) adding the language ", as the same may be amended,
supplemented, modified or restated hereafter" prior to the semicolon at the end
of the definition of "Subordination Agreement."
(d) Section 2.03 of the Reimbursement Agreement is hereby
amended by eliminating the word "and" after paragraph (e), substituting a
semicolon for the period at the end of paragraph (f), adding the word "and"
after the semicolon at the end of paragraph (f) and adding the following
paragraph after paragraph (f):
(g) on or before the closing date of any extension to the
scheduled Expiration Date of any Direct Pay Letter of Credit,
all fees, expenses, disbursements, taxes and other charges
described in Section 7.02 hereof as to which the Borrower
shall have received invoices on or prior to such closing date,
and such additional fees as may be agreed to by the Borrower
and the Bank, to which fees no Participating Bank shall have
any right, claim or interest. In the event that the scheduled
Expiration Date of any Direct Pay Letter of Credit is extended
pursuant to Section 2.07 hereof, the parties hereto
acknowledge and agree that the Borrower shall be required to
pay to the Bank all fees, charges, and expenses described in
paragraphs (b) through (f) of this Section 2.03 as well as any
amounts described in Section 7.02 hereof during any extension
period.
(e) The first paragraph following new paragraph (g) in Section
2.03 of the Reimbursement Agreement is hereby amended by deleting the word "or"
in the fourth line of the paragraph and substituting a comma in its place and by
adding the language "or (g)" in the fifth line of said paragraph after the "(f)"
and before the words "of this Section 2.03."
(f) Section 2.07 of the Reimbursement Agreement is hereby
amended by (i) deleting the language "for an additional one-year period" at the
end of the first sentence thereof and (ii) deleting the language "an additional
one-year period" at the end of the tenth and the beginning of the eleventh lines
thereof and substituting "such additional period as may be mutually agreed upon
by the Bank and the Borrower" therefor.
(g) Section 9.02 of the Reimbursement Agreement is hereby
amended by (i) adding the language "and directing the Trustee to accelerate
payment of the Bonds pursuant to Section 8.02 of the Indenture" after the word
"hereunder" in the fourth line of paragraph (b) thereof and (ii) deleting the
words "principal or" in the last line of paragraph (b) thereof.
(h) Section 10.02 of the Reimbursement Agreement is hereby
amended by deleting the address of the Bank set forth in paragraph (b) of
Section 10.02 and replacing it with the following language:
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Swiss Bank Corporation
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
2. It shall be a condition precedent to the effectiveness of
this First Amendment that the Guarantor shall have provided the Bank with a
guarantee of the Reimbursement Obligations of the Borrower during the term of
the Direct Pay Letters of Credit, or shall have amended the Guaranty to extend
its term to March 30, 1999, as applicable.
3. This First Amendment may be executed in counterparts, each
of which, upon execution and delivery by the parties, shall be considered an
original, and all of which, taken together, shall constitute one and the same
instrument.
4. This First Amendment, and all of the obligations of the
parties hereunder, shall be construed in accordance with and governed by the
laws of the State of New York, without regard to the conflict of laws principles
thereof.
5. From and after the date hereof, all references to the
Reimbursement Agreement contained in the Reimbursement Agreement, the Loan
Documents, the Hanover Indemnity Agreement and any other documents or agreements
referred to in any of them, as such documents may from time to time be amended,
supplemented, modified or restated, shall be deemed to be references to the
Reimbursement Agreement as amended hereby. Except as specifically amended
hereby, the Reimbursement Agreement shall remain in full force and effect in
accordance with its terms.
6. The provisions of this First Amendment are severable, and
if any clause or provision shall be held invalid and unenforceable in whole or
in part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such jurisdiction and
shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this First Amendment in any
jurisdiction.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed as of the date first above written.
SWISS BANK CORPORATION,
Stamford Branch
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Associate Director Trade
Finance Services
By: /s/ Xxxxx Xxxx
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Name: /s/ Xxxxx Xxxx
Title: Associate Director Trade
Finance Services
HANOVER DIRECT, INC.
By: /s/ Xxxxxx X. X'Xxxxx
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Name: Xxxxxx X. X'Xxxxx
Title: Senior Vice President
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