BURLINGTON COAT FACTORY WAREHOUSE CORP - FORM 10-Q - EX-4.1 - FIRST SUPPLEMENTAL INDENTURE

Attached files

file	filename
EX-32.2 - CERTIFICATION - BURLINGTON COAT FACTORY WAREHOUSE CORP	exhibit32-2.htm
10-Q - FORM 10Q 1-12-10 - BURLINGTON COAT FACTORY WAREHOUSE CORP	form10q.htm
EX-31.1 - CERTIFICATION - BURLINGTON COAT FACTORY WAREHOUSE CORP	exhibit31-1.htm
EX-10.1 - PLAN AMENDMENT - BURLINGTON COAT FACTORY WAREHOUSE CORP	exhibit10-1.htm
EX-31.2 - CERTIFICATION - BURLINGTON COAT FACTORY WAREHOUSE CORP	exhibit31-2.htm
EX-32.1 - CERTIFICATION - BURLINGTON COAT FACTORY WAREHOUSE CORP	exhibit32-1.htm

Exhibit 4.1

FIRST SUPPLEMENTAL INDENTURE

This First Supplemental Indenture, dated as of December 9, 2009 (this “First Supplemental Indenture”), is by and among BCF Cards, Inc., a Virginia corporation (“BCF Cards”), Burlington Coat Factory of Hawaii, LLC, a Hawaii limited liability company (“BCF Hawaii”), Burlington Coat Factory of Mississippi, LLC, a Mississippi limited liability company (“BCF Mississippi”), Burlington Coat Factory of Montana, LLC, a Montana limited liability company (“BCF Montana”), Burlington Coat Factory of Puerto Rico, LLC, a Puerto Rico limited liability company (“BCF Puerto Rico”), Burlington Coat Factory of Rhode Island, a Rhode Island limited liability company (“BCF Rhode Island”), Burlington Coat Factory of South Dakota, LLC, a South Dakota limited liability company (“BCF South Dakota”), Burlington Coat Factory of Vermont, LLC, a Vermont limited liability company (“BCF Vermont”), Burlington Coat Factory Warehouse of Edgewater Park, Inc., a New Jersey corporation (“BCFW Edgewater”), and Burlington Coat Factory of Wyoming, LLC, a Wyoming limited liability company (“BCF Wyoming” and, together with BCF Cards, BCF Hawaii, BCF Mississippi, BCF Montana, BCF Puerto Rico, BCF Rhode Island, BCF South Dakota, BCF Vermont and BCFW Edgewater, the “New Guarantors” and each, a “New Guarantor”), Burlington Coat Factory Warehouse Corporation, a Delaware corporation (together with its successors and assigns, the “Company”), each other then existing Guarantor under the Indenture referred to below (the “Guarantors”), and Wells Fargo Bank, N.A., Trustee under the Indenture referred to below. Capitalized terms used and not defined herein shall have the same meanings given in the Indenture unless otherwise indicated.

W I T N E S S E T H:

WHEREAS, the Company, the Guarantors and the Trustee have heretofore executed and delivered an Indenture, dated as of April 13, 2006 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of 11 ⅛% Senior Notes due 2014 of the Company (the “Notes”);

WHEREAS, pursuant to Section 11.9 of the Indenture, each Restricted Subsidiary is required, within ten (10) days of becoming a Restricted Subsidiary, to execute and deliver to the Trustee a supplemental indenture and other agreements making such Subsidiary a party to the Indenture;

WHEREAS, pursuant to Section 4.17 of the Indenture, the Company is required to cause each Restricted Subsidiary that guarantees any Indebtedness of the Company or any of the Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which such Restricted Subsidiary will Guarantee the Company’s obligations under the Indenture;

WHEREAS, each of the New Guarantors is a Restricted Subsidiary of the Company and has guaranteed Indebtedness of the Company;

WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee, the Company and the Guarantors are authorized to execute and deliver this First Supplemental Indenture to amend the Indenture, without the consent of any Holder; and

WHEREAS, by entering into this First Supplemental Indenture, the Company, the Guarantors and the Trustee have consented to amend the Indenture in accordance with the terms and conditions herein.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantors, the Guarantors, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

Section 1. Agreement to be Bound. Each New Guarantor hereby becomes a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. Each New Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.

Section 2. Compliance with and Fulfillment of Condition of Sections 4.17 and 11.9. The execution and delivery of this First Supplemental Indenture and the Notation of Guarantee by the New Guarantors (along with such documentation relating thereto as the Trustee shall require) fulfills the obligations of the Company under Sections 4.17 and 11.9 of the Indenture.

Section 3. Ratification of Indenture; Supplemental Indenture Part of Indenture; Trustee’s Disclaimer. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This First Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this First Supplemental Indenture.

Section 4. Governing Law. This First Supplemental Indenture and the Notes shall be governed by and construed in accordance with the laws of the State of New York, as applied to contracts made and performed within the State of New York.

Section 5. No Adverse Interpretation of Other Agreements. This First Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries (other than the Indenture). No such indenture, loan or debt agreement may be used to interpret this First Supplemental Indenture or the Indenture.

Section 6. Successors. This First Supplemental Indenture shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Section 7. Separability. Each provision of this First Supplemental Indenture shall be considered separable and if for any reason any provision which is not essential to the effectuation of the basic purpose of this First Supplemental Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 8. Counterpart Originals. The parties may sign multiple counterparts of this First Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same agreement.

Section 9. Headings, etc. The headings of the Sections of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this First Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

* * * * *

IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the date first above written.

BCF CARDS, INC., as a Guarantor

By: /s/ Paul Tang

Name: Paul Tang