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EXHIBIT 10.108
LIMITED WAIVER AND JOINDER AGREEMENT
This
LIMITED WAIVER AND JOINDER AGREEMENT (this "Agreement"), dated as
of
July 31, 2005 (the "Effective Date"), is
made and entered into by and among
GOODY'S FAMILY CLOTHING, INC., a Tennessee
corporation ("GFC"), SYDOOG, LLC, a
Delaware limited liability company
("SYDOOG"), TREBOR OF TN, LLC, a Tennessee
limited liability company ("TREBOR"),
GOFAMCLO, LLC, a Delaware limited
liability company ("GOFAMCLO"), GFCFS, LLC,
a Delaware limited liability company
("GFCFS"), GOODY'S MS, L.P., a Tennessee
limited partnership ("GMS"), GOODY'S
IN, L.P., a Tennessee limited partnership
("GIN"), GFCTX, L.P., a Tennessee
limited partnership ("GFCTX"), GFCTN, L.P.,
a Tennessee limited partnership
("GFCTN"), GFCGA, L.P., a Tennessee limited
partnership ("GFCGA" and together
with GFC, SYDOOG, TREBOR, GOFAMCLO, GFCFS,
GMS, GIN, GFCTX and GFCTN,
collectively, the "Borrowers"), GOODY'S
HOLDING TN, LLC, a Tennessee limited
liability company ("GFCH"), GOODY'S TNDC,
L.P., a Tennessee limited partnership
("TNDC"), GOODY'S ARDC, L.P., a Tennessee
limited partnership ("ARDC"), GOODY'S
RETAIL MS, L.P., a Tennessee limited
partnership ("GRMS," and together with
GFCH, TNDC and ARDC, collectively, the "New
Borrowers"), GOODY'S GIFTCO, LLC, a
Virginia limited liability company
("Giftco"), GFC AIRCRAFT HOLDINGS, INC., a
Tennessee corporation ("GFC-Holdings"), GFC
AIRCRAFT LEASING, LLC, a Delaware
limited liability company ("GFC-Leasing"),
GFC PROFESSIONAL SERVICES, LLC, a
Tennessee limited liability company
("GFC-Services"), GFC AIRCRAFT MANAGEMENT,
LLC, a Tennessee limited liability company
("GFC-Management," and together with
Giftco, GFC-Holdings, GFC-Leasing and
GFC-Services, collectively, the
"Guarantors," and Borrowers, the New
Borrowers and the Guarantors shall be
referred to herein collectively as the
"Credit Parties"), the financial
institutions party to the Loan Agreement
(as hereinafter defined) from time to
time (collectively, the "Lenders"), and THE
CIT GROUP/BUSINESS CREDIT INC., a
New York corporation, as Lender and Agent
for the Lenders ("Agent").
WITNESSETH:
WHEREAS,
Borrowers, the Lenders and Agent are parties to that certain
Loan
and Security Agreement, dated as of May 31,
2001 (as amended by (i) the First
Amendment, (ii) the Second Amendment, (iii)
the Third Amendment, and (iv) that
certain Joinder Agreement and Fourth
Amendment, dated as of March 16, 2005,
collectively, the "Loan Agreement";
capitalized terms used but not otherwise
defined herein shall have the respective
meanings ascribed to such terms in the
Loan Agreement), pursuant to which the
Lenders have extended a revolving credit
loan facility to Borrowers in the principal
amount of $130,000,000, secured by
the Collateral;
WHEREAS,
Borrowers desire for Agent and the Lenders to waive any
Defaults
and/or Events of Default arising, or which
may hereafter arise, pursuant to
Section 9.1 of the Loan Agreement in
connection with the conversion by TREBOR
from a corporation into a limited liability
company (the "TREBOR Conversion"),
and Agent and the Lenders are willing to
grant such waiver, subject to the terms
and conditions set forth herein; and
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EXHIBIT 10.108
WHEREAS,
Borrowers desire for Agent and the Lenders to waive any
Defaults
and/or Events of Default arising, or which
may hereafter arise, pursuant to
Section 9.1 of the Loan Agreement in
connection with the conversion by SYDOOG
from a corporation into a limited liability
company (the "SYDOOG Conversion"),
and Agent and the Lenders are willing to
grant such waiver, subject to the terms
and conditions set forth herein; and
WHEREAS,
Borrowers desire for Agent and the Lenders to waive any
Defaults
and/or Events of Default arising, or which
may hereafter arise, pursuant to
Section 9.1 of the Loan Agreement in
connection with the conversion by GOFAMCLO
from a corporation into a limited liability
company (the "GOFAMCLO Conversion"
and together with the TREBOR Conversion and
the SYDOOG Conversion, collectively,
the "LLC Conversions"), and Agent and the
Lenders are willing to grant such
waiver, subject to the terms and conditions
set forth herein; and
WHEREAS,
Borrowers desire for Agent and the Lenders to waive any
Defaults
and/or Events of Default arising, or which
may hereafter arise, pursuant to
Section 11.7 of the Loan Agreement in
connection with GFC's transfer and/or
distribution of certain of its assets more
particularly described on Schedule 1
hereto to GMS (the "GFC Asset Transfer"),
and Agent and the Lenders are willing
to grant such waiver, subject to the terms
and conditions set forth herein; and
WHEREAS,
Borrowers desire for Agent and the Lenders to waive any
Defaults
and/or Events of Default arising, or which
may hereafter arise, pursuant to
Section 11.7 of the Loan Agreement in
connection with GMS' transfer and/or
distribution of (i) certain of its assets
more particularly described on
Schedule 2 hereto to GRMS, (ii) certain of
its assets more particularly
described on Schedule 3 hereto to TNDC, and
(iii) certain of its assets more
particularly described on Schedule 4 hereto
to ARDC (collectively, the "GMS
Asset Transfers" and together with the GFC
Asset Transfer, collectively, the
"Asset Transfers"), and Agent and the
Lenders are willing to grant such waiver,
subject to the terms and conditions set
forth herein; and
WHEREAS,
Borrowers desire for Agent to confirm, pursuant to the
definition
of "Permitted Investments" and Section 11.4
of the Loan Agreement, that
Borrowers have executed and delivered to
Agent all of the documents, and have
taken all of the actions, requested by
Agent in connection with GMS' formation
and capitalization of GFCH (such formation
and capitalization, the "GFCH
Formation"), and Agent is willing to so
confirm, subject to the terms and
conditions set forth herein; and
WHEREAS,
Borrowers desire for Agent to confirm, pursuant to the
definition
of "Permitted Investments" and Section 11.4
of the Loan Agreement, that
Borrowers have executed and delivered to
Agent all of the documents, and have
taken all of the actions, requested by
Agent in connection with GMS' and GFCH's
formation and capitalization of TNDC (such
formation and capitalization, the
"TNDC Formation"), and Agent is willing to
so confirm, subject to the terms and
conditions set forth herein; and
WHEREAS, Borrowers desire for Agent to confirm, pursuant to the
definition of "Permitted Investments" and
Section 11.4 of the Loan Agreement,
that Borrowers have executed and delivered
to Agent all of the documents, and
have taken all of the actions, requested
by
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EXHIBIT 10.108
Agent in connection with GMS' and TREBOR's
formation and capitalization of ARDC
(such formation and capitalization, the
"ARDC Formation"), and Agent is willing
to so confirm, subject to the terms and
conditions set forth herein; and
WHEREAS,
Borrowers desire for Agent to confirm, pursuant to the
definition
of "Permitted Investments" and Section 11.4
of the Loan Agreement, that
Borrowers have executed and delivered to
Agent all of the documents, and have
taken all of the actions, requested by
Agent in connection with GMS' and
TREBOR's formation and capitalization of
GRMS (such formation and
capitalization, the "GRMS Formation"), and
Agent is willing to so confirm,
subject to the terms and conditions set
forth herein; and
WHEREAS,
each New Borrower has derived or expects to derive a financial
or
other benefit from the obligations incurred
and to be incurred by Borrowers
under the Loan Documents, and as a result
thereof, each New Borrower has agreed
to become obligated to Agent and Lenders
under the Loan Agreement and the other
Loan Documents, all in accordance with the
terms and conditions set forth
herein;
NOW,
THEREFORE, for and in consideration of the foregoing premises,
and
other good and valuable consideration, the
receipt, sufficiency and adequacy of
which are hereby acknowledged, the parties
hereto hereby agree as follows:
1.
Limited
Waivers.
(a)
Specified
Waivers. Subject to the terms and conditions set forth
herein (including, without limitation, the
conditions precedent set forth in
Section 4 herein), Agent and Lenders hereby
waive any Defaults and/or Events of
Default arising, or which may hereafter
arise, solely as a result of Borrowers'
failure to comply with the following
(collectively, the "Specified Waivers"):
(i) Section 9.1 of the Loan Agreement solely as a result of the
LLC
Conversions, provided that (A) the LLC Conversions are consummated
in
accordance
with the articles of incorporation, by-laws and other governing
documents
of each of TREBOR, GOFAMCLO and SYDOOG and applicable law
(including
without limitation, (I) the corporate code of the State of
Tennessee,
with respect to TREBOR, and (II) the corporate code of the
State of
Delaware, with respect to GOFAMCLO and SYDOOG), (B) not more
than
five (5)
Business Days after the consummation of the LLC Conversions,
each
of TREBOR,
GOFAMCLO and SYDOOG (in each case, as converted) shall deliver
to Agent a
Manager's Certificate, substantially in the form of Exhibit A
attached
hereto, with an original execution signature thereon from the
manager or the sole
member, as the case may be, of each of TREBOR,
GOFAMCLO
and SYDOOG, and (C) not more than five (5) Business Days after
the
consummation of the LLC Conversions, each of TREBOR, GOFAMCLO
and
SYDOOG (in
each case, as converted) shall deliver to Agent a Reaffirmation
Agreement,
substantially in the form of Exhibit C attached hereto, with an
original
execution signature thereon from each of TREBOR, GOFAMCLO and
SYDOOG;
and
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EXHIBIT 10.108
(ii) Section 11.7 of the Loan Agreement solely as a result of
the
Asset
Transfers, provided that (A) GFC transfers and/or distributes
certain of its assets
more particularly described on Schedule 1 hereto to
GMS, (B)
GMS transfers and/or distributes certain of its assets more
particularly described on Schedule 2 hereto to GRMS, (C) GMS
transfers
and/or
distributes certain of its assets more particularly described
on
Schedule 3
hereto to TNDC, and (D) GMS transfers and/or distributes
certain of
its assets more particularly described on Schedule 4 hereto to
ARDC.
(b)
Limited Effect.
The limited waivers granted herein shall be limited
to those Defaults and/or Events of Default,
if any, arising, or which may
hereafter arise, solely as a result of the
Specified Waivers and shall not apply
to any past, present or future Defaults or
Events of Default caused by any other
breach or violation of any provision of the
Loan Agreement or any other Loan
Document. Agent's and Lenders' agreement to
grant the waivers set forth herein
does not and shall not create (nor shall
any Credit Party rely upon the
existence of or claim or assert that there
exists) any obligation of Agent or
any Lender to consider or agree to any
further waivers. In the event that Agent
or any Lender subsequently agree to
consider any further waiver, neither the
waivers set forth herein nor any other
conduct of Agent or any Lender shall be
of any force or effect on Agent's or any
Lender's consideration or decision with
respect thereto, and Agent and Lenders
shall have no further obligation
whatsoever to consider or agree to further
waivers. Except for the Specified
Waivers, Agent and Lenders expressly
reserve the right to require strict
compliance with the terms of the Loan
Agreement and the other Loan Documents in
all respects. The waivers granted herein
shall not constitute a course of
dealing at variance with the Loan Agreement
or the other Loan Documents so as to
require further notice by Agent or any
Lender to require strict compliance with
the terms of the Loan Agreement and the
other Loan Documents in the future.
2.
Confirmation. Subject to the terms and conditions set forth
herein
(including, without limitation, the
conditions precedent set forth in Section 4
herein), Agent hereby confirms, pursuant to
the definition of "Permitted
Investments" and Section 11.4 of the Loan
Agreement, that Borrowers have
executed and delivered to Agent all of the
documents, and have taken all of the
actions, requested by Agent in connection
with the GFCH Formation, the TNDC
Formation, the ARDC Formation and the GRMS
Formation.
3.
Joinder of
New Borrowers. Each New Borrower hereby irrevocably
acknowledges and agrees that (a) it is a
"Borrower" within the meaning of, and
subject to, the Loan Agreement and each
other Loan Document, and (b) each
reference to "Borrower" or "Borrowers" in
the Loan Agr
