JOINDER TO LOAN DOCUMENTS
Exhibit
10.4
This
Joinder to Loan Documents (this “Joinder”) is made as
of February 18, 2009, by and among:
BURLINGTON COAT FACTORY WAREHOUSE
CORPORATION (“Borrower”), a
corporation organized under the laws of the State of Delaware, with its
principal executive offices at 0000 Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx
00000;
The FACILITY GUARANTORS party to
the Credit Agreement (as defined below) set forth on Schedule I annexed hereto
(collectively, the “Existing Facility
Guarantors”);
BURLINGTON COAT FACTORY OF IOWA, LLC
(the “New
Facility Guarantor”); and
BEAR XXXXXXX CORPORATE LENDING
INC., a Delaware corporation, having a place of business at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 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 and among, among others, Borrower, Existing Facility Guarantors (together
with the Borrower, the “Existing Loan Parties”), the
Lenders named therein (collectively, the “Lenders”) and Bear
Xxxxxxx Corporate Lending Inc., as Administrative Agent, (in such capacity, the
“Administrative
Agent”), and as collateral agent (in such capacity the “Collateral Agent”,
and collectively with the Administrative Agent, the “Agents”).
B. Reference
is further made to (i) a certain Guaranty dated as of April 13, 2006 (as
amended, modified, supplemented or restated and in effect from time to time, the
“Guaranty”)
entered into among the Existing Facility Guarantors in favor of the
Administrative Agent, the Collateral Agent and the other Secured Parties,
pursuant to which each Existing Facility Guarantor unconditionally guaranteed
all Obligations of the Borrower under the Credit Agreement and the other Loan
Documents; and (ii) a certain Security Agreement dated as of April 13, 2006 (as
amended, modified, supplemented or restated and in effect from time to time, the
“Security
Agreement”) entered into among the Existing Loan Parties and the
Collateral Agent, to secure the Existing Loan Parties respective Obligations
under the Loan Documents.
C. Pursuant
to the terms of Section 5.12 of the Credit Agreement, the Borrower is required
to cause the New Facility Guarantor to become a party to, and bound by the terms
of, the Credit Agreement and certain of the other Loan Documents, in the same
capacity and to the same extent as the Existing Facility Guarantors
thereunder.
D. In
order for the New Facility Guarantor to become party to the Credit Agreement and
certain of the other Loan Documents as provided herein, the New Facility
Guarantor and the Existing Loan Parties are required to execute this
Joinder.
NOW,
THEREFORE, in consideration of the foregoing premises 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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The
New Facility Guarantor hereby:
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i.
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Joins
in the execution of, and becomes a party to (i) the Credit Agreement, as a
Facility Guarantor; (ii) the Guaranty, as a Facility Guarantor, and
unconditionally guarantees, as a primary obligor and not merely as a
surety, the due and punctual payment and performance (whether at the
stated maturity, by acceleration or otherwise) by the Borrower of all
Obligations; (iii) the Security Documents, as a Grantor; and (iv) each of
the other Loan Documents to which the Existing Facility Guarantors 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 Guaranty, the Security Agreement and
the other Loan Documents to which the Existing Facility Guarantors are a
party.
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b.
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Without
in any manner limiting the generality of clause (a) above, the New
Facility Guarantor hereby covenants and agrees
that:
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i.
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Such
New Facility Guarantor shall be bound by all covenants (other than
covenants which specifically relate solely to an earlier date),
agreements, liabilities and acknowledgments of (i) a “Facility Guarantor”
under the Credit Agreement and the Guaranty and (ii) a “Grantor” under the
Security Agreement, in each case, with the same force and effect as if
such New Facility Guarantor was a signatory thereto and was expressly
named therein;
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ii.
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The
Obligations may be extended or renewed, in whole or in part, without
further notice to or assent from, such New Facility Guarantor, and that it
will remain bound upon the Guaranty notwithstanding any extension or
renewal of any of the Obligations, (ii) such New Facility Guarantor is
jointly and severally liable for all Guaranteed Obligations (as defined in
the Guaranty);
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iii.
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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, such New Facility Guarantor 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. The New Facility Guarantor hereby makes all
representations, warranties, and covenants set forth in the Credit
Agreement, the Guaranty, the Security Agreement, and each of the other
Loan Documents to which the Existing Facility Guarantors are a party, 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 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 Facility Guarantor and the other Loan
Parties necessary for the valid execution, delivery and performance by the
New Facility Guarantor 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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The
New Facility Guarantor (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 the New Facility Guarantor 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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Upon
the reasonable request of the Administrative Agent, the Agents 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 the New Facility Guarantor, 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 FACILITY
GUARANTOR:
BURLINGTON
COAT FACTORY OF IOWA, LLC
By:__/s/
Xxxx Tang_________
Name: Xxxx Xxxx
Title: Executive
Vice President
ADMINISTRATIVE
AGENT:
BEAR
XXXXXXX CORPORATE LENDING INC.
By: __/s/ Xxxxx
Bergman________
Name: Xxxxx
Xxxxxxx
Title: Managing
Director
COLLATERAL
AGENT:
BEAR
XXXXXXX CORPORATE LENDING INC.
By: __/s/
Xxxxx Bergman___
Name: Xxxxx
Xxxxxxx
Title: Managing
Director
Acknowledged
and Agreed:
BURLINGTON
COAT FACTORY WAREHOUSE CORPORATION,
as
Borrower
By:______/s/
Xxxx Xxxx _____________________
Name: Xxxx Xxxx
Title: Executive
Vice President
THE
ENTITIES LISTED ON SCHEDULE I HERETO, as Existing Facility
Guarantors
By:___/s/ Xxxx
Xxxx ________________________
Name: Xxxx
Xxxx
Title: Executive
Vice President
Schedule
I
Existing
Facility Guarantors
Burlington
Coat Factory Warehouse Corporation (Lead Borrower)
Baby
Depot of California, LLC
Bee Ridge
Plaza, LLC
Burlington
Coat Factory Direct Corporation
Burlington
Coat Factory Holdings, Inc.
Burlington
Coat Factory of Alabama, LLC
Burlington
Coat Factory of Arizona, LLC
Burlington
Coat Factory of Arkansas, LLC
Burlington
Coat Factory of California, LLC
Burlington
Coat Factory of Colorado, LLC
Burlington
Coat Factory of Connecticut, LLC
Burlington
Coat Factory of Delaware, LLC
Burlington
Coat Factory of Florida, LLC
Burlington
Coat Factory of Georgia, LLC
Burlington
Coat Factory of Idaho, LLC
Burlington
Coat Factory of Illinois, LLC
Burlington
Coat Factory of Iowa, LLC
Burlington
Coat Factory of Indiana, 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
Burlington
Coat Factory of Michigan, LLC
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 of New Jersey, LLC
Burlington
Coat Factory of New Mexico, LLC
Burlington
Coat Factory 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 of Oklahoma, LLC
Burlington
Coat Factory of Oregon, LLC
Burlington
Coat Factory of Pennsylvania, LLC
Burlington
Coat Factory of Pocono Crossing, LLC
Burlington
Coat Factory of Rhode Island, LLC
Burlington
Coat Factory of South Carolina, LLC
Burlington
Coat Factory of Texas, Inc.
Burlington
Coat Factory of Texas, L.P.
Burlington
Coat Factory of Utah, LLC
Burlington
Coat Factory of Virginia, LLC
Burlington
Coat Factory of Washington, LLC
Burlington
Coat Factory of West Virginia, LLC
Burlington Coat Factory of Wisconsin,
LLC
Burlington
Coat Factory Purchasing, Inc.
Burlington
Coat Factory Realty Corp.
Burlington
Coat Factory Realty of Bellaire, Inc.
Burlington
Coat Factory Realty of Bloomingdale, Inc.
Burlington
Coat Factory Realty of Coliseum, Inc.
Burlington
Coat Factory Realty of Coral Springs, Inc.
Burlington
Coat Factory Realty of Des Xxxxx, Inc.
Burlington
Coat Factory Realty of Desert Sky, Inc.
Burlington
Coat Factory Realty of Dublin, Inc.
Burlington
Coat Factory Realty of Edgewater Park, Inc.
Burlington
Coat Factory Realty of El Paso, Inc.
Burlington
Coat Factory Realty of Fairfax, Inc.
Burlington
Coat Factory Realty of Florin, Inc.
Burlington
Coat Factory Realty of Franklin, Inc.
Burlington
Coat Factory Realty of Greenwood, Inc.
Burlington
Coat Factory Realty of Huntsville, LLC
Burlington
Coat Factory Realty of Langhorne, Inc.
Burlington
Coat Factory Realty of Memphis, Inc.
Burlington
Coat Factory Realty of Mesa, Inc.
Burlington
Coat Factory Realty of Xxxxxx, Inc.
Burlington
Coat Factory Realty of North Attleboro, Inc.
Burlington
Coat Factory Realty of Orlando, Inc.
Burlington
Coat Factory Realty of Paramus, Inc.
Burlington
Coat Factory Realty of Pinebrook, Inc.
Burlington
Coat Factory Realty of River Oaks, Inc.
Burlington
Coat Factory Realty of Sarasota, Inc.
Burlington
Coat Factory Realty of Tulsa, Inc.
Burlington
Coat Factory Realty of University Square, Inc.
Burlington
Coat Factory Realty of Ventura, Inc.
Burlington
Coat Factory Realty of West Colonial, Inc.
Burlington
Coat Factory Realty of West Mifflin, Inc.
Burlington
Coat Factory Realty of Xxxxxxxxxxxx, Inc.
Burlington
Coat Factory Realty of Whitehall, Inc.
Burlington
Coat Factory Realty of Yonkers, Inc.
Burlington
Coat Factory Warehouse of Anchorage, Inc.
Burlington
Coat Factory Warehouse of Atlanta, Inc.
Burlington
Coat Factory Warehouse of Baytown, Inc.
Burlington
Coat Factory Warehouse of Bristol, LLC
Burlington
Coat Factory Warehouse of Charleston, Inc.
Burlington
Coat Factory Warehouse of Cheltenham, Inc.
Burlington
Coat Factory Warehouse of Cleveland, Inc.
Burlington
Coat Factory Warehouse of Coliseum, Inc.
Burlington
Coat Factory Warehouse of Detroit, Inc.
Burlington
Coat Factory Warehouse of East St. Louis, Inc.
Burlington
Coat Factory Warehouse of Edgewater Park Urban Renewal Corp.
Burlington
Coat Factory Warehouse of Grand Rapids, Inc.
Burlington
Coat Factory Warehouse of Hickory Commons, Inc.
Burlington
Coat Factory Warehouse of Langhorne, Inc.
Burlington
Coat Factory Warehouse of Memphis, Inc.
Burlington
Coat Factory Warehouse of Montgomeryville, Inc.
Burlington
Coat Factory Warehouse of New Jersey, Inc.
Burlington
Coat Factory Warehouse of Xxxxxxx, Inc.
Burlington
Coat Factory Warehouse of San Bernadino, LLC
Burlington
Coat Factory Warehouse of Shelby, Inc.
Burlington
Coat Factory Warehouse of Xxxxxx-Xxxxx, Inc.
Burlington
Coat Factory Warehouse Inc.
Burlington
Coat Realty of East Windsor, Inc.
Burlington
Coat Realty of Gurnee, Inc.
Burlington
Coat Realty of Houston, Inc.
Burlington
Coat Realty of Las Vegas, Inc.
Burlington
Coat Realty of Plano, Inc.
Burlington
Coat Realty of Potomac, Inc.
Burlington
Factory Warehouse of Reading, Inc.
C.F.B.,
Inc.
C.F.I.C.
Corporation
C.L.B.,
Inc.
Cohoes
Fashions of Connecticut, LLC
Cohoes
Fashions of Cranston, Inc.
Cohoes
Fashions of Massachusetts, LLC
Cohoes
Fashions of New Jersey, LLC
Cohoes
Fashions of New York, LLC
Georgetown
Fashions Inc.
K&T
Acquisition Corp.
LC
Acquisition Corp.
MJM
Designer Shoes of California, LLC
MJM
Designer Shoes of Delaware, LLC
MJM
Designer Shoes of Florida, LLC
MJM
Designer Shoes of Moorestown, Inc.
MJM
Designer Shoes of New Jersey, LLC
MJM
Designer Shoes of New York, LLC
MJM
Designer Shoes of Pennsylvania, LLC
MJM
Designer Shoes of Texas, Inc.
Xxxxxx X.
Xxxxxxxx, Inc.
Super
Baby Depot of Moorestown, Inc.
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
