Contract
Exhibit
10.5
This
Joinder to Loan Documents (this “Joinder”) is made as
of February 18, 2009 by and among:
BURLINGTON COAT FACTORY WAREHOUSE
CORPORATION, a Delaware corporation, as agent (in such capacity, the
“Lead
Borrower”) for itself and the other Borrowers party to the Credit
Agreement referred to below;
The BORROWERS party to the Credit
Agreement set forth on Schedule I annexed hereto (collectively, with the Lead
Borrower, the “Existing Borrowers”);
The FACILITY GUARANTORS party to
the Credit Agreement set forth on Schedule II annexed hereto (collectively, the
“Facility
Guarantors”);
BURLINGTON COAT FACTORY OF IOWA,
LLC, an Iowa limited liability company (the “New Borrower”);
and
BANK OF AMERICA, N.A., a
national banking association, having a place of business at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, as administrative agent (in such capacity, the
“Administrative
Agent”) for its own benefit and the benefit of the other Credit Parties
(as defined in the Credit Agreement referred to below) and as collateral agent
(in such capacity, the “Collateral Agent”),
for its own benefit and for the benefit of the other Secured Parties (as defined
in the Credit Agreement referred to below) to the Credit Agreement (as defined
below);
in
consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E
S S E T H :
A. Reference
is made to a certain Credit Agreement dated as of April 13, 2006 (as amended,
modified, supplemented or restated and in effect from time to time, the “Credit Agreement”)
by, among others (i) Lead Borrower, (ii) the Existing Borrowers, (iii) the
Facility Guarantors (together with the Existing Borrowers, the “Existing Loan Parties”), (iv)
the Lenders named therein (collectively, the “Lenders”), (v) Bank
of America, N.A., as Administrative Agent, (vi) Bank of America, N.A., as
Collateral Agent, (vii) Bear Xxxxxxx Corporate Lending Inc., a Delaware
corporation, as Syndication Agent, and (viii) Wachovia Bank, National
Association, The CIT Group/Business Credit, Inc., General Electric Capital
Corporation, and JPMorgan Chase Bank, N.A., as co-Documentation
Agents.
B. Pursuant
to the terms of Section 5.12 of the Credit Agreement, the Existing Loan Parties
(as applicable) are required to cause the New Borrower to become a party to, and
bound by the terms of, the Credit Agreement and the other Loan Documents, in the
same capacity and to the same extent as the Existing Borrowers
thereunder. The undersigned New Borrower is executing this Joinder in
accordance with the requirements of the Credit Agreement to become a Borrower
thereunder and to induce the Lenders to make additional Revolving Credit Loans
and to induce the Issuing Bank to issue additional Letters of
Credit.
C. In
order for the New Borrower to become party to the Credit Agreement and certain
of the other Loan Documents as provided herein, the New Borrower and the
Existing Loan Parties are required to execute this Joinder.
NOW,
THEREFORE, in consideration of the foregoing premises and as consideration for
the Revolving Credit Loans previously made and the Letters of Credit previously
issued, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
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1.
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Definitions. All
capitalized terms used herein and not otherwise defined shall have the
same meaning herein as in the Credit
Agreement.
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2.
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Joinder and Assumption
of Obligations. Effective as of the date of this
Joinder:
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a.
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New
Borrower hereby:
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i.
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Joins
in the execution of, and becomes a party to the Credit Agreement, the
Revolving Credit Notes, the Swingline Note, the Security Documents and
each of the other Loan Documents to which the Existing Borrowers are a
party.
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ii.
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Assumes
and agrees to perform all applicable duties and Obligations of a Loan
Party under the Credit Agreement, the Revolving Credit Notes, the
Swingline Note, the Security Documents and each of the other Loan
Documents to which the Existing Borrowers are a
party.
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b.
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Without
in any manner limiting the generality of clause (a) above, New Borrower
hereby covenants and agrees that:
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i.
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New
Borrower shall be bound by all covenants (other than covenants which
specifically relate solely to an earlier date), agreements, liabilities
and acknowledgments of a Borrower under the Credit Agreement, the
Revolving Credit Notes, the Swingline Note, the Security Documents and
each of the other Loan Documents to which the Existing Borrowers are a
party, in each case, with the same force and effect as if New Borrower was
a signatory thereto and was expressly named
therein;
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ii.
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To
secure the prompt and complete payment, performance and observance of all
of the Obligations and all renewals, extensions, restructurings and
refinancings thereof, New Borrower hereby grants, mortgages, pledges and
hypothecates to the Collateral Agent, for the benefit of the Collateral
Agent and the Secured Parties, a Lien upon all of its right, title and
interest in, to and under the
Collateral.
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3.
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Representations and
Warranties. New Borrower hereby makes all
representations, warranties, and covenants set forth in the Credit
Agreement the Revolving Credit Notes, the Swingline Note, the Security
Documents and each of the other Loan Documents as of the date hereof
(other than representations, warranties and covenants that relate solely
to an earlier date). To the extent that any changes in any
representations, warranties, and covenants require any amendments to the
Schedules to the Credit Agreement or any of the other Loan Documents, such
Schedules are hereby updated, as evidenced by any supplemental Schedules
(if any) annexed to this Joinder.
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4.
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Ratification of Loan
Documents. Except as specifically amended by this
Joinder and the other documents executed and delivered in connection
herewith, all of the terms and conditions of the Credit Agreement and of
the other Loan Documents shall remain in full force and effect as in
effect prior to the date hereof, without
releasing any Loan Party thereunder or Collateral granted by any Loan
Party.
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5.
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Conditions Precedent
to Effectiveness. This Joinder shall not be effective
until the following conditions precedent have each been fulfilled to the
reasonable satisfaction of the Administrative
Agent:
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a.
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This
Joinder shall have been duly executed and delivered by the respective
parties hereto, and shall be in full force and effect and shall be in form
and substance reasonably satisfactory to the Administrative
Agent.
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b.
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All
action on the part of the New Borrower and the other Loan Parties
necessary for the valid execution, delivery and performance by the New
Borrower of this Joinder and all other documentation, instruments, and
agreements required to be executed in connection herewith shall have been
duly and effectively taken and evidence thereof reasonably satisfactory to
the Administrative Agent shall have been provided to the Administrative
Agent.
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c.
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New
Borrower (and each other Loan Party, to the extent requested by the
Administrative Agent) shall each have delivered the following to the
Administrative Agent, in form and substance reasonably satisfactory to the
Administrative Agent:
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i.
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Certificate
of Legal Existence and Good Standing issued by the Secretary of the State
of its incorporation or
organization.
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ii.
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A
certificate of an authorized officer of the due adoption, continued
effectiveness, and setting forth the text, of each corporate resolution
adopted in connection with the assumption of obligations under the Credit
Agreement and the other Loan Documents, and attesting to the true
signatures of each Person authorized as a signatory to any of the Loan
Documents, together with true and accurate copies of all Charter
Documents.
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iii.
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Execution
and delivery by New Borrower of such other documents, agreements and
certificates as the Administrative Agent and the Collateral Agent may
reasonably require.
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d.
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The
Agents, upon their reasonable request, shall have received a favorable
written legal opinion of the Loan Parties’ counsel addressed to the Agents
and the other Lenders, covering such matters relating to New Borrower, the
Loan Documents and/or the transactions contemplated thereby as the Agents
shall reasonably request.
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e.
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The
Administrative Agent shall have received all documents and instruments,
(including an authenticated record authorizing the Agents and their
representatives to file such UCC financing statements as the Agents may
determine to be appropriate), required by law or requested by the
Administrative Agent or the Collateral Agent to create or perfect the
first priority Lien (subject only to Permitted Encumbrances having
priority by operation of Applicable Law) intended to be created under the
Loan Documents and all such documents and instruments shall have been so
filed, registered or recorded or other arrangements reasonably
satisfactory to the Agents.
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f.
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The
Loan Parties shall have executed and delivered to the Agents such
additional documents, instruments, and agreements as the Agents may
reasonably request.
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6.
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Miscellaneous.
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a.
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This
Joinder may be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and delivered shall
be an original, and all of which together shall constitute one
instrument.
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b.
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This
Joinder expresses the entire understanding of the parties with respect to
the transactions contemplated hereby. No prior negotiations or
discussions shall limit, modify, or otherwise affect the provisions
hereof.
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c.
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Any
determination that any provision of this Joinder or any application hereof
is invalid, illegal or unenforceable in any respect and in any instance
shall not effect the validity, legality, or enforceability of such
provision in any other instance, or the validity, legality or
enforceability of any other provisions of this
Joinder.
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d.
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The
Loan Parties shall pay all Credit Party Expenses of the Agents and the
Secured Parties, including, without limitation, all such Credit Party
Expenses incurred in connection with the preparation, negotiation,
execution and delivery of this Joinder in accordance with the terms of the
Credit Agreement.
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e.
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THIS
JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
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[SIGNATURE PAGES
FOLLOW]
IN
WITNESS WHEREOF, each of the undersigned has caused this Joinder to be duly
executed and delivered by its proper and duly authorized officer as of the date
first written above.
NEW
BORROWER:
BURLINGTON
COAT FACTORY OF IOWA, LLC
By:_____/s/ Xxxx
Tang_____________
Name: Xxxx
Xxxx
Title: Executive
Vice President
ADMINISTRATIVE
AGENT:
BANK OF
AMERICA, N.A.
By:_____/s/ Xxxxxxxx
Dimock_______
Name: Xxxxxxxx
Xxxxxx
Title: Managing
Director
COLLATERAL
AGENT:
BANK OF
AMERICA, N.A.
By:_____/s/ Xxxxxxxx
Xxxxxx _______
Name: Xxxxxxxx
Xxxxxx
Title: Managing
Director
Acknowledged and
Agreed:
BURLINGTON
COAT FACTORY WAREHOUSE CORPORATION,
as Lead
Borrower
By:__/s/ Xxxx
Xxxx _________________________
Name: Xxxx Xxxx
Title: Executive
Vice President
THE
ENTITIES LISTED ON SCHEDULE I HERETO, as Borrowers
By:_/s/ Xxxx
Xxxx __________________________
Name: Xxxx Xxxx
Title: Executive
Vice President
THE
ENTITIES LISTED ON SCHEDULE II HERETO, as Facility Guarantors
By:__/s/ Xxxx
Xxxx _________________________
Name: Xxxx Xxxx
Title: Executive
Vice President
SCHEDULE
I
Borrowers
Burlington
Coat Factory Warehouse Corporation (Lead Borrower)
Burlington
Coat Factory of Alabama, LLC
Burlington
Coat Factory Warehouse of Anchorage, Inc.
Burlington
Coat Factory of Arizona, LLC
Burlington
Coat Factory of Arkansas, LLC
Baby
Depot of California, LLC
Burlington
Coat Factory of California, LLC
Burlington
Coat Factory Warehouse of San Bernadino, LLC
MJM
Designer Shoes of California, LLC
Burlington
Coat Factory of Colorado, LLC
Burlington
Coat Factory of Connecticut, LLC
Cohoes
Fashions of Connecticut, LLC
Burlington
Coat Factory of Delaware, LLC
Burlington
Coat Factory of Texas, L.P.
C.F.B.,
Inc.
MJM
Designer Shoes of Delaware, LLC
Burlington
Coat Factory of Florida, LLC
MJM
Designer Shoes of Florida, LLC
Burlington
Coat Factory of Georgia, LLC
Burlington
Coat Factory Warehouse of Atlanta, Inc.
Burlington
Coat Factory of Idaho, LLC
Burlington
Coat Factory of Illinois, LLC
Burlington
Coat Factory Warehouse of East St. Louis, Inc.
Burlington
Coat Factory of Indiana, LLC
Burlington
Coat Factory of Iowa, LLC
Burlington
Coat Factory of Kansas, LLC
Burlington
Coat Factory of Kentucky, Inc.
Burlington
Coat Factory of Louisiana, LLC
Burlington
Coat Factory of Maine, LLC
Burlington
Coat Factory of Maryland, LLC
Burlington
Coat Factory of Massachusetts, LLC
Cohoes
Fashions of Massachusetts, LLC
Burlington
Coat Factory of Michigan, LLC
Burlington
Coat Factory Warehouse of Detroit, Inc.
Burlington
Coat Factory Warehouse of Xxxxxxx, Inc.
Burlington
Coat Factory Warehouse of Grand Rapids, Inc.
Burlington
Coat Factory of Minnesota, LLC
Burlington
Coat Factory of Mississippi, LLC
Burlington
Coat Factory of Missouri, LLC
Burlington
Coat Factory of Nebraska, LLC
Burlington
Coat Factory of Nevada, LLC
Burlington
Coat Factory of New Hampshire, LLC
Burlington
Coat Factory Direct Corporation
Burlington
Coat Factory of New Jersey, LLC
Burlington
Coat Factory Warehouse of New Jersey, Inc.
Cohoes
Fashions of New Jersey, LLC
MJM
Designer Shoes of Moorestown, Inc.
MJM
Designer Shoes of New Jersey, LLC
Super
Baby Depot of Moorestown, Inc.
Burlington
Coat Factory of New Mexico, LLC
Burlington
Coat Factory of New York, LLC
Georgetown
Fashions Inc.
Xxxxxx X.
Xxxxxxxx, Inc.
Cohoes
Fashions of New York, LLC
MJM
Designer Shoes of New York, LLC
Burlington
Coat Factory of North Carolina, LLC
Burlington
Coat Factory of North Dakota, LLC
Burlington
Coat Factory of Ohio, LLC
Burlington
Coat Factory Warehouse of Cleveland, Inc.
Burlington
Coat Factory of Oklahoma, LLC
Burlington
Coat Factory of Oregon, LLC
Burlington
Coat Factory Warehouse of Bristol, LLC
Burlington
Coat Factory of Pennsylvania, LLC
Burlington
Coat Factory Warehouse of Montgomeryville, Inc.
Burlington
Coat Factory Warehouse of Cheltenham, Inc.
Burlington
Coat Factory Warehouse of Xxxxxx-Xxxxx, Inc.
Burlington
Coat Factory Warehouse of Langhorne, Inc.
Burlington
Factory Warehouse of Reading, Inc.
Burlington
Coat Factory Warehouse Inc.
MJM
Designer Shoes of Pennsylvania, LLC
Burlington
Coat Factory of Rhode Island, LLC
Cohoes
Fashions of Cranston, Inc.
Burlington
Coat Factory of South Carolina, LLC
Burlington
Coat Factory Warehouse of Charleston, Inc.
Burlington
Coat Factory Warehouse of Memphis, Inc.
Burlington
Coat Factory Warehouse of Shelby, Inc.
Burlington
Coat Factory Warehouse of Hickory Commons, Inc.
Burlington
Coat Factory Warehouse of Baytown, Inc.
MJM
Designer Shoes of Texas, Inc.
Burlington
Coat Factory of Utah, LLC
Burlington
Coat Factory of Virginia, LLC
Burlington
Coat Factory of Pocono Crossing, LLC
Burlington
Coat Factory Warehouse of Coliseum, Inc.
Burlington
Coat Factory of Washington, LLC
Burlington
Coat Factory of West Virginia, LLC
Burlington
Coat Factory of Wisconsin, LLC
BCF
Cards, Inc.
Burlington
Coat Factory of Puerto Rico, LLC
Burlington
Coat Factory of Hawaii, LLC
Burlington
Coat Factory of Montana, LLC
Burlington
Coat Factory of Vermont, LLC
Burlington
Coat Factory of South Dakota, LLC
Burlington
Coat Factory of Wyoming, LLC
SCHEDULE
II
Facility
Guarantors
Burlington
Coat Factory Holdings, Inc.
Burlington
Coat Factory Realty of Huntsville, LLC
Burlington
Coat Factory Realty of Mesa, Inc.
Burlington
Coat Factory Realty of Desert Sky, Inc.
Burlington
Coat Factory Realty of Dublin, Inc.
Burlington
Coat Factory Realty of Florin, Inc.
Burlington
Coat Factory Realty of Ventura, Inc.
Burlington
Coat Realty of East Windsor, Inc.
Burlington
Coat Factory of Texas, Inc.
Burlington
Coat Factory Purchasing, Inc.
C.F.I.C.
Corporation
C.L.B.,
Inc.
Burlington
Coat Factory Realty Corp.
Burlington
Coat Factory Realty of University Square, Inc.
Burlington
Coat Factory Realty of Coral Springs, Inc.
Burlington
Coat Factory Realty of West Colonial, Inc.
Burlington
Coat Factory Realty of Orlando, Inc.
Burlington
Coat Factory Realty of Sarasota, Inc.
K&T
Acquisition Corp.
Bee Ridge
Plaza, LLC
Burlington
Coat Factory Realty of Xxxxxx, Inc.
Burlington
Coat Realty of Gurnee, Inc.
Burlington
Coat Factory Realty of Bloomingdale, Inc.
Burlington
Coat Factory Realty of River Oaks, Inc.
Burlington
Coat Factory Realty of Greenwood, Inc.
Burlington
Coat Factory Realty of North Attleboro, Inc.
Burlington
Coat Factory Realty of Des Xxxxx, Inc.
Burlington
Coat Realty of Las Vegas, Inc.
Burlington
Coat Factory Realty of Edgewater Park, Inc.
Burlington
Coat Factory Realty of Paramus, Inc.
Burlington
Coat Factory Realty of Pinebrook, Inc.
Burlington
Coat Factory Warehouse of Edgewater Park Urban Renewal Corp.
Burlington
Coat Factory Realty of Yonkers, Inc.
LC
Acquisition Corp.
Burlington
Coat Factory Realty of Tulsa, Inc.
Burlington
Coat Factory Realty of West Mifflin, Inc.
Burlington
Coat Factory Realty of Langhorne, Inc.
Burlington
Coat Factory Realty of Whitehall, Inc.
Burlington
Coat Factory Realty of Memphis, Inc.
Burlington
Coat Realty of Plano, Inc.
Burlington
Coat Realty of Houston, Inc.
Burlington
Coat Factory Realty of Xxxxxxxxxxxx, Inc.
Burlington
Coat Factory Realty of Bellaire, Inc.
Burlington
Coat Factory Realty of El Paso, Inc.
Burlington
Coat Realty of Potomac, Inc.
Burlington
Coat Factory Realty of Fairfax, Inc.
Burlington
Coat Factory Realty of Coliseum, Inc.
Burlington
Coat Factory Realty of Franklin, Inc.
