INCREASE OF TOTAL COMMITMENT AND AMENDMENT NO. 1 to the AMENDED AND RESTATED MULTICURRENCY REVOLVING CREDIT AGREEMENT
INCREASE
OF TOTAL COMMITMENT
AND
AMENDMENT
NO. 1
to
the
AMENDED
AND RESTATED MULTICURRENCY REVOLVING CREDIT AGREEMENT
This
INCREASE OF TOTAL COMMITMENT AND AMENDMENT NO. 1,
dated
as of October 28, 2005 (the "Amendment"),
to
the AMENDED
AND RESTATED MULTICURRENCY REVOLVING
CREDIT AGREEMENT
is by
and among (a) BORDERS
GROUP, INC.
(“BGI”),
a
Michigan corporation, BORDERS,
INC.,
a
Colorado corporation (“Borders”),
▇▇▇▇▇▇
BOOK COMPANY, INC.,
a
Colorado corporation (“▇▇▇▇▇▇”),
BGP
(UK) LIMITED,
a
company with limited liability organized under the laws of England
(“BGP (UK)”
and
together with BGI, Borders and ▇▇▇▇▇▇, the “Co-Borrowers”),
(b)
BORDERS
(UK) LIMITED,
a
company with limited liability organized under the laws of England (the
“UK
Borrower”),
(c)
BORDERS
AUSTRALIA PTY LIMITED, a
company
organized under the laws of Australia (the “Australian
Borrower”),
(d)
any other Subsidiary of BGI which becomes a Borrower hereunder pursuant to
§5.16
(together with the Co-Borrowers, the UK Borrower and the Australian Borrower,
the “Borrowers”),
(e)
the lending institutions listed from time to time on Schedule 1
(the
“Lenders”),
(f)
FLEET
RETAIL GROUP, LLC
(formerly known as Fleet Retail Group, Inc.), as
administrative agent and as collateral agent for itself and such other lending
institutions (the “Administrative
Agent”),
(g)
JPMORGAN
CHASE BANK, N.A. and
▇▇▇▇▇
FARGO RETAIL FINANCE, LLC,
each as
a syndication agent for itself and such other lending institutions
(collectively, the "Co-Syndication
Agents"),
(h)
GENERAL
ELECTRIC CAPITAL CORPORATION and
NATIONAL
CITY BUSINESS CREDIT, INC.,
each as
documentation agent for itself and such other lending institutions
(collectively, the "Co-Documentation
Agents")
and
(i) BANK
OF AMERICA, N.A.,
successor by merger to Fleet National Bank, as an Issuing Bank hereunder, and
with BANC
OF AMERICA SECURITIES LLC and JPMORGAN SECURITIES INC., as
Co-Lead Arrangers. Capitalized terms used herein and not otherwise defined
shall
be defined as provided in §1.
WHEREAS,
the
Borrowers, the Lenders, and the Agents are parties to that certain Amended
and
Restated Multicurrency Revolving Credit Agreement dated as of July 30, 2004
(as
amended and in effect from time to time, the “Credit
Agreement”);
WHEREAS,
each of
the Lenders have agreed to increase their Commitments pursuant to §2.3.2 of the
Credit Agreement thus increasing the Total Commitment to
$700,000,000;
WHEREAS,
at
the
Borrowers’ request, the Lenders and the Agents, subject to the terms and
conditions hereof, have agreed to amend the Credit Agreement as set forth
herein;
NOW,
THEREFORE,
the
Borrowers, the Lenders and the Agents hereby agree as follows:
§1.
Defined
Terms.
Capitalized terms used herein without definition that are defined in the Credit
Agreement shall have the same meanings herein as in the Credit
Agreement.
§2.
Amendments to the Credit Agreement.
On the
Effective Date (as defined below), the Credit Agreement is hereby amended as
follows:
(a) Amendment
of “Aggregate Borrowing Base” Definition. The
definition of “Aggregate
Borrowing Base”
set
forth in §1.1 of the Credit Agreement is amended by (i) deleting the reference
to “85%” in clause (a) of such definition (relating to Eligible Credit Card
Receivables) and substituting “90%” in lieu thereof; (ii) deleting the reference
to “73%” in clause (b)(y)(i) of such definition and substituting “71%” in lieu
thereof; (iii) deleting the text “September 1 of any year through November 30 of
such year” in clause (b)(y)(i) of such definition and substituting “October 1 of
any year through December 31 of such year” in lieu thereof; and (iv) deleting
the reference to “66%” in clause (b)(y)(ii) of such definition and substituting
“64%” in lieu thereof.
(b) Amendment
of “Applicable Margin” Definition. The
definition of “Applicable
Margin”
set
forth in §1.1 of the Credit Agreement is amended by deleting the table set forth
therein and substituting in place thereof the table set forth
below:
|
Level
|
Excess
Availability
|
Base
Rate Loans
|
Eurocurrency
Rate
Loans
|
Standby
Letter
of
Credit
Fees
|
Documentary
Letter
of
Credit
Fees
|
|
I
|
Greater
than or equal to $250,000,000
|
0%
|
1.00%
|
1.00%
|
0.500%
|
|
II
|
Greater
than or equal to $100,000,000 but less than $250,000,000
|
0%
|
1.25%
|
1.25%
|
0.625%
|
|
III
|
Less
than $100,000,000
|
0%
|
1.50%
|
1.50%
|
0.750%
|
(c) Amendment
of “Authorized Officers” Definition. The
definition of “Authorized
Officers”
set
forth in §1.1 of the Credit Agreement is amended by adding the text “, Associate
Director, Treasury“ immediately after the text “Vice President - Finance and
Asset Protection” in such definition.
(d) Amendment
of “Domestic Borrowing Base” Definition. The
definition of “Domestic
Borrowing Base”
set
forth in §1.1 of the Credit Agreement is amended by (i) deleting the reference
to “85%” in clause (a) of such definition (relating to Eligible Credit Card
Receivables) and substituting “90%” in lieu thereof; (ii) deleting the reference
to “73%” in clause (b)(y)(i) of such definition and substituting “71%” in lieu
thereof; (iii) deleting the text “September 1 of any year through November 30 of
such year” in clause (b)(y)(i) of such definition and substituting “October 1 of
any year through December 31 of such year” in lieu thereof; and (iv) deleting
the reference to “66%” in clause (b)(y)(ii) of such definition and substituting
“64%” in lieu thereof.
(e) Amendment
of “Foreign Sublimit” Definition. The
definition of “Foreign
Sublimit”
set
forth in §1.1 of the Credit Agreement is amended and restated in its entirety to
read as follows:
“Foreign
Sublimit.
$200,000,000 (or the Optional Currency equivalent thereof); provided
that,
upon the effectiveness of the Borders Ireland Joinder, the Foreign Sublimit
shall be increased to $300,000,000 (or the Optional Currency equivalent
thereof).”
(f) Amendment
of “Maturity Date” Definition. The
definition of “Maturity
Date”
set
forth in §1.1 of the Credit Agreement is amended and restated in its entirety to
read as follows:
“Maturity
Date.
October
28, 2010, as the same may be extended in the sole discretion of the Lenders
pursuant to §2.11.”
(g) Amendment
of “Total Commitment” Definition. The
definition of “Total
Commitment”
set
forth in §1.1 of the Credit Agreement is amended and restated in its entirety to
read as follows:
“Total
Commitment.
The sum
of the Commitments of the Lenders, as in effect from time to time. On the First
Amendment Effective Date, the Total Commitment shall be $700,000,000 as a result
of an increase in the Total Commitment in accordance with §2.3.2. The Total
Commitment may not be increased further under §2.3.2.”
(h) New
Definitions. The
Credit Agreement is amended by adding the following new definitions in the
appropriate alphabetical order to §1 of the Credit Agreement:
Borders
Ireland.
Borders
Books Limited Ireland, a company with limited liability organized under the
laws
of Ireland.
Borders
Ireland Joinder.
The
joinder
transaction whereby Borders
Ireland shall
join this Agreement and the other Loan Documents as an “Irish
Borrower”
upon the
satisfaction of the conditions to effectiveness set forth in §8 of the First
Amendment.
European
Borrower.
Each of
the UK Borrower and the Irish Borrower.
European
Guaranteed Obligations.
See
§6.1.
First
Amendment.
That
certain Increase in Total Commitment and Amendment No. 1 to this Agreement,
dated as of the First Amendment Effective Date, by and among the Borrowers,
the
Agents and the Lenders.
First
Amendment Effective Date.
October
28, 2005.
Irish
Borrower.
Upon
the effectiveness of the Borders Ireland Joinder, Borders Ireland.
Irish
Loans.
Revolving credit loans made or to be made by the Lenders to the Irish Borrower
pursuant to §2.1.1.
Irish
Note.
See
§2.6.5.
Irish
Note Record.
A
Record with respect to an Irish Note.
Irish
Obligations.
Indebtedness, obligations and liabilities of the Irish Borrower to any of the
Lenders, any Affiliate of any Lender, any of the Agents and any Issuing Bank
individually or collectively, existing on the date of this Credit Agreement
or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan Documents or
any
Hedging Agreement or any Cash Management Services or in respect of any of the
European Loans made to the Irish Borrower or Reimbursement Obligations incurred
in respect of Letters of Credit issued for the account of the Irish Borrower
or
any of the Irish Notes, Letter of Credit Applications, Letters of Credit or
other instruments at any time evidencing any thereof.
Irish
Security Documents.
All
instruments, agreements, and/or documents necessary or advisable under
applicable law to create, establish and/or perfect a security interest in the
Collateral owned by the Irish Borrower, in each case in form and substance
reasonably satisfactory to the Administrative Agent.
(i) Amendments
Relating to the Addition of the Irish Borrower.
(i) Amendment
to Definition of “Borrowers”.
The
definition of “Borrowers”
set
forth in §1.1 of the Credit Agreement is amended and restated in its entirety to
read as follows:
Borrower(s).
As
defined in the preamble hereto, and including, upon the effectiveness of the
Borders Ireland Joinder, the Irish Borrower.
(ii) Amendment
to Definition of “Security
Documents”.
The
definition of “Security
Documents”
set
forth in §1.1 of the Credit Agreement is amended by inserting the text “, the
Irish Security Documents” immediately after the words “the U.K. Security
Documents” in such definition.
(iii) Amendment
to Definition of “Notes”.
The
definition of “Notes”
set
forth in §1.1 of the Credit Agreement is amended by inserting the text “, the
Irish Notes” immediately after the words “the U.K. Notes” in such
definition.
(iv) Amendment
to Definition of “Obligations”.
The
definition of “Obligations”
set
forth in §1.1 of the Credit Agreement is amended by inserting the text “, the
Irish Obligations” immediately after the words “the Australian Obligations” in
such definition.
(v) Amendment
to Definition of “Revolving Credit Loans”.
The
definition of “Revolving
Credit Loans”
set
forth in §1.1 of the Credit Agreement is amended by inserting the text “, the
Irish Loans” immediately after the words “the Australian Loans” in such
definition.
(vi) Amendments
to §2.1.1 of the Credit Agreement.
Section
2.1.1 of the Credit Agreement is amended by (A) inserting the text “, the Irish
Loans” immediately after the words “the Australian Loans” in such section and
(B) inserting the text “, the Irish Borrower” immediately after the words “the
U.K. Borrower” in such section.
(vii) Amendment
to §2 of the Credit Agreement.
Section
2 of the Credit Agreement is amended by (A) renumbering existing §§2.6.5 and
2.6.6 as “§2.6.6” and “§2.6.7”, respectively, and (B) adding the following new
§2.6.5 immediately following existing §2.6.4:
The
Irish Notes.
Upon
the
request of any Lender to the Irish Borrower, such Lender’s Irish Loans shall be
evidenced by separate promissory notes of the Irish Borrower in substantially
the form of Exhibit
A-5
(with
appropriate insertions) (each a “Irish
Note”).
One
Irish Note shall be payable to the order of each such requesting Lender in
a
principal amount equal to such Lender’s Commitment Percentage of the Foreign
Sublimit or, if less, the outstanding amount of all Irish Loans made by such
Lender, plus interest accrued thereon, as set forth below. The Irish Borrower
irrevocably authorizes each Lender to make or cause to be made, at or about
the
time of the Drawdown Date of any Irish Loan or at the time of receipt of any
payment of principal on such Lender’s Irish Note, an appropriate notation on
such Lender’s Irish Note Record reflecting the making of such Irish Loan or (as
the case may be) the receipt of such payment.
(viii) Amendment
to §2.9.2(b) of the Credit Agreement.
Section
2.9.2(b) of the Credit Agreement is amended by deleting the text “Unless the
Co-Borrowers, the Australian Borrower or the UK Borrower, as the case may be”
and substituting the text “Unless the applicable Borrower” in lieu
thereof.
(ix) Amendment
to §3.1 of the Credit Agreement.
Section
3.1 of the Credit Agreement is amended by adding the following new sentence
at
the end of such section:
“The
Irish Borrower promises to pay on the Maturity Date, and there shall become
due
and payable on the Maturity Date, all of the Irish Loans outstanding to the
Irish Borrower on such date, together with any and all accrued and unpaid
interest thereon.”
(x) Amendment
to §3.2(a) of the Credit Agreement.
Section
3.2(a) of the Credit Agreement is amended by replacing the text “and (B)” in the
proviso of such section with the text “, (B)” and adding the following new text
at the end of such section: “and (C) any payments by the Irish Borrower shall be
applied solely to the Irish Loans or Unpaid Reimbursement Obligations or
Reimbursement Obligations in respect of Letters of Credit issued for the account
of the Irish Borrower.”
(xi) Other
Amendment to §3.2 of the Credit Agreement.
(A)
Section 3.2(c) of the Credit Agreement is amended and restated in its entirety
as follows:
(c)
if
the Dollar Equivalent of the sum of (x) the outstanding UK Loans, the Irish
Loans and Australian Loans, plus
(y) the
LC Exposure in respect of Letters of Credit issued for the account of the UK
Borrower, the Irish Borrower and/or the Australian Borrower exceeds the Foreign
Sublimit, the UK Borrower, the Irish Borrower and the Australian Borrower shall
immediately pay the amount of such excess to the Administrative Agent for the
respective accounts of the Lenders for application, (X) in the case of the
UK
Borrower, first,
to any
Unpaid Reimbursement Obligations in respect of Letters of Credit issued for
the
account of a UK Borrower; second,
to the
UK Loans; and third,
to
provide to the Administrative Agent Cash Collateral for Reimbursement
Obligations in respect of Letters of Credit issued for the account of the UK
Borrower as contemplated by §4.2(ii) and (iii), (Y) in the case of the Irish
Borrower, first,
to any
Unpaid Reimbursement Obligations in respect of Letters of Credit issued for
the
account of the Irish Borrower; second,
to the
Irish Loans; and third,
to
provide to the Administrative Agent Cash Collateral for Reimbursement
Obligations in respect of Letters of Credit issued for the account of the Irish
Borrower as contemplated by §4.2(ii) and (iii), and (Z) in the case of the
Australian Borrower, first,
to any
Unpaid Reimbursement Obligations in respect of Letters of Credit issued for
the
account of the Australian Borrower; second,
to the
Australian Loans; and third,
to
provide to the Administrative Agent Cash Collateral for Reimbursement
Obligations in respect of Letters of Credit issued for the account of the
Australian Borrower as contemplated by §4.2(ii) and (iii).
and
(B)
the final paragraph of §3.2 is hereby amended by adding the text “, Irish Note”
immediate after the text “UK Note”.
(xii) Amendments
to §4.1.1 of the Credit Agreement.
Section
4.1.1 of the Credit Agreement is amended by (A) deleting each reference to
“the
UK Borrower” in such section and substituting a reference to “any European
Borrower” in lieu thereof and (B) inserting the text “and the Irish Loans”
immediately after the words “the U.K. Loans” in such section.
(xiii) Amendments
to §4.2 of the Credit Agreement.
Section
4.2 of the Credit Agreement is amended by replacing the text “and (c)” in such
section with the text “, (c)” and adding the following new text immediately
before the colon in the introductory paragraph in such section: “and (d) the
Irish Borrower hereby agrees to reimburse or pay to the Administrative Agent,
for the account of the applicable Issuing Bank or (as the case may be) the
Lenders, with respect to each Letter of Credit issued, extended or renewed
by
the Issuing Bank hereunder at the request of the Irish Borrower”
(xiv) Amendments
to §4.3 of the Credit Agreement.
Section
4.3 of the Credit Agreement is amended by adding the text “, an Irish Loan in
the case of the Irish Borrower” immediately after each reference to “a UK Loan
in the case of the UK Borrower” in such section.
(xv) Amendments
to §5.2 of the Credit Agreement.
Section
5.2 of the Credit Agreement is amended by deleting the reference to “the UK
Borrower” in such section and substituting the text “any European Borrower” in
lien thereof.
(xvi) Amendments
to §5.13.2(b) of the Credit Agreement.
Section
5.13.2(b) of the Credit Agreement is amended by (A) inserting the text “, the
Irish Loans” immediately after the words “the UK Loans” in such section and (B)
inserting the text “, the Irish Borrower” immediately after the words “the U.K.
Borrower” in such section.
(xvii) Amendments
to §§5.16 and 5.17 of the Credit Agreement.
Sections 5.16 and 5.17 of the Credit Agreement are each amended by inserting
the
text “, the Irish Borrower” immediately after each reference to “the U.K.
Borrower” in each such section.
(xviii) Amendments
to §6 of the Credit Agreement.
Sections 6 of the Credit Agreement is amended by (A) deleting clause (b) of
§6.1
in its entirety and substituting the following new clause (b) in lieu thereof:
“(b)
the
Australian Borrower hereby
absolutely, unconditionally and irrevocably guarantees to the Agents, the
Issuing Banks and the Lenders, the full and punctual payment when due (whether
at stated maturity, by required pre-payment, by acceleration or otherwise),
as
well as the performance, of all of the UK Obligations and the Irish Obligations
including all such which would become due but for the operation of the automatic
stay pursuant to §362(a) of the Federal Bankruptcy Code and the operation of
§§502(b) and 506(b) of the Federal Bankruptcy Code
(such
obligations collectively being the "European Guaranteed
Obligations")”;
(B)
deleting each reference to “UK Guaranteed Obligations” in such §6 and
substituting a reference to “European Guaranteed Obligations” in lieu thereof;
(C) inserting the text “in respect of the UK Borrower” in §6.11 in immediately
after the reference to “European Guaranteed Obligations” in such section; and
(D) inserting the text “the Irish Obligations” in §6.12 in immediately after the
reference to “UK Obligations” in such section.
(xix) Amendment
to §8.15.2 of the Credit Agreement.
Section
8.15.2 of the Credit Agreement is amended by (X) replacing the text “and (B)” in
the proviso of the first sentence of such section with the text “, (B)” and
adding the following new text immediately before the period in such sentence:
“and (C) any payments by the Irish Borrower shall be applied solely to the Irish
Loans or Unpaid Reimbursement Obligations or Reimbursement Obligations in
respect of Letters of Credit issued for the account of the Irish Borrower” and
(Y) inserting the text “the Irish Borrower” in second sentence of such section
immediately after reference to “the UK Borrower” in such sentence.
(xx) Amendment
to §§9.3(f) and 9.5.2(d) of the Credit Agreement.
Sections 9.3(f) and 9.5.2(d) of the Credit Agreement are each amended by
deleting each reference to “the UK Borrower” in each such section and
substituting the text “any European Borrower” in lieu thereof.
(xxi) Amendment
to §13.5 of the Credit Agreement.
Section
13.5 of the Credit Agreement is amended by (A) inserting the text “or the Irish
Borrower” immediately after the words “the Australian Borrower” in such section
and (B) inserting the text “and/or the Irish Obligations, respectively”
immediately after the words “the Australian Obligations” in such
section.
(xxii) Exhibit
A-5 to the Credit Agreement.
The
Credit Agreement is amended by adding a new Exhibit
A-5
(Form of
Irish Note) to the Credit Agreement in the form attached hereto as Annex
A.
(j) Amendment
to Schedule 7.7 of the Credit Agreement.
The
Credit Agreement is amended by deleting the existing Schedule
7.7
to the
Credit Agreement and substituting a new Schedule
7.7
(Litigation) to the Credit Agreement in the form attached hereto as Annex
B.
§3. Increase
in Total Commitment. Pursuant
to §2.3.2 of the Credit Agreement, the Total Commitment is hereby increased from
$500,000,000 to $700,000,000 and Schedule 1
to the
Credit Agreement is amended by the Administrative Agent and the Borrowers by
replacing such schedule with Schedule 1
attached
hereto. Effective as of the Effective Date (as defined below), each Lender
shall
make such dispositions and arrangements with each other Lender with respect
to
the then outstanding Revolving Credit Loans, participations in Swingline Loans
and LC Exposure (the “Adjustment”)
as
shall result in the amount of Revolving Credit Loans, participations in
Swingline Loans and LC Exposure owed to each Lender being equal to the product
of such Lender's Commitment Percentage multiplied by the aggregate Revolving
Credit Loans, participations in Swingline Loans and LC Exposure outstanding
on
the Effective Date (the “Adjusted Amount”).
Each
of the Borrowers and the Guarantors hereby agrees that each Lender's Adjusted
Amount shall be Revolving Credit Loans, participations in Swingline Loans and
LC
Exposure, as the case may be, owed by the applicable Borrowers to such Lender
as
if such Lender had initially made Revolving Credit Loans, participations in
Swingline Loans and extensions of credit relating to LC Exposure under the
Credit Agreement to the Borrowers in the amount of the Adjusted Amount. The
Borrowers also hereby jointly and severally agree to pay all amounts referred
to
in §5.10 of the Credit Agreement pursuant to the terms of such §5.10 arising in
connection with the Adjustment. Upon the occurrence of the Adjustment, (a)
the
Administrative Agent shall appropriately adjust its records to reflect each
Lender's Adjusted Amount and (b) each of the Lenders shall as soon as
practicable return to the Administrative Agent (for further delivery to the
Borrowers pursuant to §9 hereof) (i) its existing Australian Note, (ii) its
existing UK Note and (ii) its existing Co-Borrower Note if such Lender’s
Commitment has increased pursuant to this Amendment, each of which shall be
replaced by an amended and restated Australian Note, UK Note or Co-Borrower
Note, as applicable, to be delivered in connection with this Amendment and
the
contemplated increase and reallocation of the Total Commitment. The Lenders
shall make any appropriate adjustments in payments received in respect of the
Obligations which are allocable to periods prior to the Effective Date directly
among themselves as shall be necessary to effect the proper allocation of such
payments among the Lenders, reflecting their respective portions of the
applicable Obligations held by them from time to time.
§4. Fees.
(a)
Amendment
Fee. The
Borrowers shall pay to each Lender which returns an executed counterpart
signature page to this Amendment to the Administrative Agent on or prior to
5:00p.m. (Boston time) on October 28, 2005, an amendment fee (the “Amendment Fee”)
equal
to two and one-half (2.5) basis points of such Lender’s Commitment (prior to the
effectiveness of the increase in the Total Commitment as contemplated by §3 of
this Amendment).
(b)
Upfront
Fee. The
Borrowers shall pay to the Administrative Agent, for the account of the Lenders
(including Fleet Retail Group, LLC) participating in the increase in the Total
Commitment, a fee (the “Upfront
Fee”)
of ten
(10) basis points of the aggregate principal amount of the increase in the
Total
Commitment. Such Upfront Fee shall be for the Lenders’ participation in such
increase and shall be payable in full upon the effectiveness of the
Amendment.
§5. Affirmation
of the Borrowers and Guarantors.
Each of
the Borrowers hereby affirms its absolute and unconditional promise to pay
to
each Lender, the Issuing Bank, each Swingline Lender and the Agents the Loans,
the Reimbursement Obligations and all other amounts due under the Notes, the
Credit Agreement as amended hereby and the other Loan Documents, at the times
and in the amounts provided for therein. Each of the Guarantors hereby affirms
its guaranty of the Obligations in accordance with the provisions of the
Guaranty. Each of the Borrowers and the Guarantors confirms and agrees that
(i)
the obligations of the Borrowers to the Lenders, the Swingline Lenders, the
Issuing Bank and the Agents under the Credit Agreement as amended hereby are
secured by and entitled to the benefits of the Security Documents and (ii)
all
references to the term “Credit Agreement” in the Security Documents and the
other Loan Documents shall hereafter refer to the Credit Agreement as amended
hereby.
§6. Conditions to Effectiveness.
Upon
satisfaction of the following conditions, this Amendment shall be deemed
effective as of the date hereof (the “Effective
Date”):
(a) Amendment. This
Amendment shall have been duly executed by the Borrowers, the Guarantors, the
Administrative Agent and each of the Lenders and delivered to the Administrative
Agent.
(b) Notes. Each
Lender whose Commitment has increased pursuant to this Amendment shall have
received a duly executed amended and restated Co-Borrower Note in the amount
of
such Lender’s Commitment and, to the extent changes are required, each
applicable Lender shall have received a duly executed (i) amended and restated
Australian Note in the amount of such Lender’s Commitment Percentage of the
Foreign Sublimit and (ii) amended and restated UK Note in the amount of such
Lender’s Commitment Percentage of the Foreign Sublimit, which shall, from and
after the Effective Date, be deemed to constitute, respectively, the Co-Borrower
Notes, the Australian Notes and the UK Notes held by such Lenders as referred
to
in the Credit Agreement.
(c) Corporate
Action. The
Administrative Agent shall have received certificates of an appropriate officer
of each of the Borrowers and their Subsidiaries, dated as of the date hereof,
certifying as to (i) no amendments, modifications or supplements to the
Governing Documents of any Borrower or Subsidiary and that such Governing
Documents are in full force and effect or attaching certified copies of any
amendments, modifications or supplements thereto, (ii) all corporate or other
organizational actions taken by each of the Borrowers and their Subsidiaries
authorizing the execution, delivery, and performance hereof and attaching copies
of the board minutes and/or resolutions relating to such authorization, and
(iii) the names, titles, incumbency, and specimen signatures of the officers
of
each of the Borrowers and their Subsidiaries authorized to sign this Amendment
on behalf of such Borrower or Subsidiary.
(d) Opinions
of Counsel. Each
of
the Lenders, the Agents and the Issuing Banks shall have received a favorable
legal opinion addressed to the Lenders, the Agents, and the Issuing Banks dated
as of the date hereof, in form and substance satisfactory to the Lenders, Agents
and the Issuing Banks, from:
| (i) | ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC, counsel to the Borrowers and their Subsidiaries; and |
|
(ii)
|
▇▇▇▇▇▇
▇▇▇▇▇▇, Esq., General Counsel to the Borrowers and their
Subsidiaries.
|
(e) Payment of Fees. The
Administrative Agent shall have received payment of the Amendment Fee, the
Upfront Fee and all other fees to be paid by the Borrowers upon the
effectiveness of this Amendment.
§7. Conditions
Subsequent.
No later
than ten (10) Business Days after the Effective Date, each of the Lenders,
the
Agents and the Issuing Banks shall have received a favorable legal opinion
addressed to the Lenders, the Agents, and the Issuing Banks, in form and
substance satisfactory to the Lenders, Agents and the Issuing Banks, from (i)
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the UK Borrower and BGP(UK); and (ii) ▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, Australian counsel to the Australian Borrower. Each of the
Borrowers hereby agrees that any failure to satisfy the aforementioned
requirements on or prior to the date specified above shall constitute an Event
of Default under the Loan Agreement.
§8. Conditions
to Effectiveness of Borders Ireland Joinder.
Upon
satisfaction of the following conditions, the joinder transaction whereby
Borders Ireland shall join, and be bound by, the Credit Agreement and the other
Loan Documents as an “Irish Borrower” shall be deemed effective:
(a) Borders
Ireland’s joinder to the Credit Agreement and the other Loan Documents as an
“Irish Borrower” shall not violate any of the terms or conditions of the Senior
Note Agreement, the Senior Notes or any documents, agreement and/or instruments
related thereto or result in a default or an event of default
thereunder.
(b) The
Administrative Agent shall have received a Joinder Agreement, in form and
substance satisfactory to the Administrative Agent, executed and delivered
by
Borders Ireland and each of the Borrowers and the Guarantors (the “Borders
Ireland Joinder Agreement”).
(c) Each
requesting Lender shall receive an executed original Irish Note which has been
executed by the Borders Ireland.
(d) The
Administrative Agent shall have received a
legal
opinion of counsel to Borders Ireland, as to the legal, valid and binding nature
of the Credit Agreement and the other Loan Documents, as supplemented the
Borders
Ireland Joinder Agreement and any related documents,
and
such other matters as the Administrative Agent may reasonably request, in form
and substance satisfactory to the Administrative Agent.
(e) The
Administrative Agent shall have received copies,
certified by a duly authorized officer of Borders Ireland to be true and
complete as of the date hereof, of each of (i) the charter or other formation
documents of Borders Ireland as in effect on the date of the Borders Ireland
Joinder
Agreement,
(ii)
the by-laws or other constitutive documents of Borders Ireland as in effect
on
the date hereof, (iii) the resolutions of the Board of Directors or a committee
or similar governing entity of Borders Ireland authorizing the execution and
delivery of the Borders Ireland Joinder
Agreement,
the
other documents executed in connection therewith and Borders Ireland’s
performance of all of the transactions contemplated hereby, and (iv) an
incumbency certificate giving the name and bearing a specimen signature of
each
individual who shall be authorized to sign, in the Borders Ireland’s name and on
its behalf, each of the Borders Ireland Joinder
Agreement,
the
Irish Notes and the other Loan Documents, any Loan Request, and to give notices
and to take other action on its behalf under Credit Agreement and the other
Loan
Documents.
(f) The
Administrative Agent shall have received
a
certificate of an appropriate official of Ireland or
other
customary documentation of a recent date as to Borders Ireland’s good standing,
valid existence and tax payment status.
(g) If
any
assets of the Irish Borrower are to be included in the Aggregate Borrowing
Base,
the Administrative Agent shall have received the
Irish
Security Documents and/or, as appropriate, any other documents, instruments
or
agreements advisable under applicable law to grant and perfect a first priority
security interest in and charge over the assets of Borders Ireland which
constitute Collateral, and evidence of insurance in respect of Borders Ireland,
in each case, in form and substance satisfactory to the Administrative
Agent.
(h) The
Administrative Agent shall have received
such
other agreements, documents or instruments as the Administrative Agent may
reasonably request in connection with the Borders Ireland Joinder Agreement,
any
related documents or the transactions contemplated thereby.
§9. Representations and Warranties.
The
Borrowers hereby represent and warrant to the Lenders, the Agents and the
Issuing Bank as follows:
(a) Representations and Warranties in Credit Agreement.
The
representations and warranties of the Borrowers and their Subsidiaries contained
in the Credit Agreement, as amended hereby, are true and correct on the date
hereof (except to the extent of changes resulting from transactions contemplated
or permitted by this Credit Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the aggregate
are
not materially adverse, and to the extent that such representations and
warranties relate expressly to an earlier date), and no Default or Event of
Default has occurred and is continuing.
(b) Authority,
No Conflicts,
Etc.
The
execution, delivery and performance of this Amendment and all related documents
and the consummation of the transactions contemplated hereby and thereby (a)
are
within the corporate (or the equivalent company) authority of such Person,
(b)
have been duly authorized by all necessary corporate (or the equivalent company)
proceedings, (c) do not and will not conflict with or result in any breach
or
contravention of any provision of law, statute, rule or regulation to which
any
of the Borrowers or any of their Subsidiaries is subject or any judgment, order,
writ, injunction, license or permit applicable to any of the Borrowers or any
of
their Subsidiaries and (d) do not conflict with any provision of the Governing
Documents of, the Senior Notes Agreement or the Senior Notes or any other
agreement or other instrument binding upon, any of the Borrowers or any of
their
Subsidiaries.
(c) Enforceability of Obligations.
This
Amendment, the Notes and the Credit Agreement as amended hereby constitute
the
legal, valid and binding obligations of each Borrower and each of their
respective Subsidiaries party thereto, enforceable against each Borrower and
each of their respective Subsidiaries, in accordance with their respective
terms, except as limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, or other laws relating to or affecting creditors’
rights generally, general equitable principles (whether considered in equity
or
at law) and an implied covenant of good faith and fair dealing, and except
to
the extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
§10. No Other Amendments.
Except
as expressly provided in this Amendment, all of the terms, conditions and
provisions of the Credit Agreement and the other Loan Documents shall remain
the
same. It is declared and agreed by each of the parties hereto that the Credit
Agreement, as amended hereby, shall continue in full force and effect, and
that
this Amendment and the Credit Agreement shall be read and construed as one
instrument.
§11. Return of Superseded Notes.
As soon
as practicable upon the effectiveness of this Amendment, each Lender holding
an
Australian Note, UK Note or Co-Borrower Note previously delivered to such Lender
under the Credit Agreement (prior to giving effect to this Amendment) that
has
been superseded and replaced by an amended and restated Australian Note, UK
Note
or Co-Borrower Note, as applicable, delivered to such Lender pursuant to this
Amendment shall return such superseded note, marked “cancelled”, to the
Borrowers.
§12. Execution in Counterparts.
This
Amendment may be executed in any number of counterparts and by each party on
a
separate counterpart, each of which when so executed and delivered shall be
an
original, but all of which together shall constitute one instrument. In proving
this Amendment, it shall not be necessary to produce or account for more than
one such counterpart signed by the party against whom enforcement is sought.
Delivery of an executed signature page of this Amendment by facsimile or
electronic transmission shall be effective as delivery of a manually executed
counterpart thereof.
§13. Governing Law. THIS
AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT UNDER SEAL UNDER THE LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED
IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH WITHOUT REFERENCE
TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAW.
§14. Headings,
etc.
Headings
or captions used in this Amendment are for convenience of reference only and
shall not define or limit the provisions hereof. This Amendment shall constitute
a “Loan Document” under the Credit Agreement.
§15. Expenses.
The
Borrowers jointly and severally hereby agree to pay to the Administrative
Agent,
on demand by the Administrative Agent, all reasonable out-of-pocket costs and
expenses incurred or sustained by the Administrative Agent in connection with
the preparation of this Amendment (including reasonable legal
fees).
[Reminder
of page intentionally left blank]
--
IN
WITNESS WHEREOF,
the
parties have executed this Amendment under seal as of the date first above
written.
BORDERS
GROUP, INC.
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Title:
Senior
Vice President, Finance and Chief Financial Officer
BORDERS,
INC.
▇▇▇▇▇▇
BOOK COMPANY, INC.
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Senior Vice President, Treasurer and Assistant Secretary
BGP
(UK) LIMITED
BORDERS
(UK) LIMITED
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Director
BORDERS
AUSTRALIA PTY LTD
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Director
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
Director
FLEET
RETAIL GROUP, LLC
(formerly known as Fleet Retail Group, Inc.),
individually
and as Administrative Agent
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director
BANK
OF AMERICA, N.A.,
successor by merger to Fleet National Bank, as
Issuing Bank
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director
AGREED
AND ACKNOWLEDGED
PLANET
MUSIC, INC.
BORDERS
PROPERTIES, INC.
WALDENBOOKS
PROPERTIES, INC.
BORDERS
OUTLET, INC.
THE
LIBRARY, LTD.
BORDERS
ONLINE, INC.
By: /s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Title:
Senior
Vice President, Treasurer
and
Assistant Secretary
BORDERS
FULFILLMENT, INC.
By:
/s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Title:
Senior
Vice President, Finance
and
Chief
Financial Officer
BORDERS
ONLINE, LLC
By:
BORDERS, INC.,
its
Sole Member
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Title:
Senior
Vice President, Treasurer
and
Assistant Secretary
JPMORGAN
CHASE BANK, N.A.
By:
/s/▇▇▇▇▇
▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President
▇▇▇▇▇
FARGO RETAIL FINANCE, LLC
By:
/s/▇▇▇▇
Lofts
Name:
▇▇▇▇ Lofts
Title:
Account Executive
NATIONAL
CITY BUSINESS CREDIT, INC.
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Director
GENERAL
ELECTRIC CAPITAL CORPORATION
By:
/s/▇▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇
Title:
Duly Authorized Signatory
PNC
BANK, NATIONAL ASSOCIATION
By:
/s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President
COMERICA
BANK
By:
/s/▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Account Officer
SUNTRUST
BANK
By:
/s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Title: Vice
President
KEYBANK
NATIONAL ASSOCIATION
By:
/s/▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇
Title: Vice
President
UNION
BANK OF CALIFORNIA N.A.
By:
/s/▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President
U.S.
BANK, NATIONAL ASSOCIATION
By:
/s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇
Title:
Vice
President
LASALLE
BANK MIDWEST NATIONAL ASSOCIATION
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇
Title:
First
Vice President
FIFTH
THIRD BANK
By:
/s/▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title:
Vice
President
THE
BANK OF NEW YORK
By:
/s/▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Assistant
Vice President
UBS
AG, STAMFORD BRANCH
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇
▇.
▇▇▇▇
Title:
Associate
Director
Banking
Products
Services,
US
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title:
Associate
Director
Banking
Products
Services,
US