JOINDER TO LOAN DOCUMENTS
EXHIBIT
10.41
Execution
Copy
This
Joinder to Loan Documents (this “Joinder”) is made as
of May 27, 2008, 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”);
BCF CARDS, INC., a Virginia
corporation, BURLINGTON COAT
FACTORY OF PUERTO RICO, LLC, a Puerto Rico limited liability company,
BURLINGTON COAT FACTORY OF
HAWAII, LLC, a Hawaii limited liability company, BURLINGTON COAT FACTORY OF MONTANA,
LLC, a Montana limited liability company, BURLINGTON COAT FACTORY OF VERMONT,
LLC, a Vermont limited liability company, BURLINGTON COAT FACTORY OF SOUTH
DAKOTA, LLC, a South Dakota limited liability company and BURLINGTON COAT FACTORY OF WYOMING,
LLC, a Wyoming limited liability company (individually, each a “New Facility
Guarantor” and collectively, the “New Facility
Guarantors”); 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 Guarantors 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 Guarantors to become party to the Credit Agreement
and certain of the other Loan Documents as provided herein, the New Facility
Guarantors 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:
1 Definitions. All
capitalized terms used herein and not otherwise defined shall have the same
meaning herein as in the Credit Agreement.
2. Joinder and Assumption of
Obligations. Effective as of the date of this Joinder:
a. Each
New Facility Guarantor hereby:
i. 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.
ii. 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.
b. Without
in any manner limiting the generality of clause (a) above, each New Facility
Guarantor hereby covenants and agrees that:
i. 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;
ii. 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);
iii. To
secure the prompt and complete payment, performance and observance of all of the
Obligations and all renewals, extensions, restructurings and refinancings
thereof, each 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.
3. Representations and
Warranties. Each 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.
4. 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.
5. 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:
a. 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.
b. All
action on the part of each New Facility Guarantor and the other Loan Parties
necessary for the valid execution, delivery and performance by such 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.
c. Each
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:
i. Certificate
of Legal Existence and Good Standing issued by the Secretary of the State of its
incorporation or organization.
ii. 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.
iii. Execution
and delivery by each New Facility Guarantor of such other documents, agreements
and certificates as the Administrative Agent and the Collateral Agent may
reasonably require.
d. 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 Guarantors, the Loan Documents and/or the transactions
contemplated thereby as the Agents shall reasonably request.
e. 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.
f. The
Loan Parties shall have executed and delivered to the Agents such additional
documents, instruments, and agreements as the Agents may reasonably
request.
6. Miscellaneous.
a. 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.
b. 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.
c. 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.
d. 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.
e. THIS
JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
[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
GUARANTORS:
|
BCF
CARDS, INC.
|
|
|
By:
|
/s/ Xxxx Xxxx
|
|
Name:
|
Xxxx
Xxxx
|
|
Title:
|
Executive
Vice President
|
|
BURLINGTON
COAT FACTORY OF PUERTO RICO, LLC
|
|
|
By:
|
/s/ Xxxx Xxxx
|
|
Name:
|
Xxxx
Xxxx
|
|
Title:
|
Executive
Vice President
|
|
BURLINGTON
COAT FACTORY OF HAWAII, LLC
|
|
|
By:
|
/s/ Xxxx Xxxx
|
|
Name:
|
Xxxx
Xxxx
|
|
Title:
|
Executive
Vice President
|
|
BURLINGTON
COAT FACTORY OF MONTANA, LLC
|
|
|
By:
|
/s/ Xxxx Xxxx
|
|
Name:
|
Xxxx
Xxxx
|
|
Title:
|
Executive
Vice President
|
|
BURLINGTON
COAT FACTORY OF VERMONT, LLC
|
|
|
By:
|
/s/ Xxxx Xxxx
|
|
Name:
|
Xxxx
Xxxx
|
|
Title:
|
Executive
Vice President
|
|
BURLINGTON
COAT FACTORY OF SOUTH DAKOTA, LLC
|
|
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By:
|
/s/ Xxxx Xxxx
|
|
Name:
|
Xxxx
Xxxx
|
|
Title:
|
Executive
Vice President
|
|
BURLINGTON
COAT FACTORY OF WYOMING, LLC
|
|
|
By:
|
/s/ Xxxx Xxxx
|
|
Name:
|
Xxxx
Xxxx
|
|
Title:
|
Executive
Vice President
|
ADMINISTRATIVE
AGENT:
|
BEAR
XXXXXXX CORPORATE LENDING INC.
|
|
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By:
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/s/ Xxxxx X. Xxxxxx
|
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Name:
|
Xxxxx
X. Xxxxxx
|
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Title:
|
Vice
President
|
COLLATERAL
AGENT:
|
BEAR
XXXXXXX CORPORATE LENDING INC.
|
|
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By:
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/s/ Xxxxx X.
Xxxxxx
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
Title:
|
Vice
President
|
Acknowledged
and Agreed:
|
BURLINGTON
COAT FACTORY WAREHOUSE CORPORATION,
as
Borrower
|
|
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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 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.
