EXHIBIT 10.62
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT, dated as of July 22, 2004 (this "Agreement"),
is among BORDERS GROUP, INC. (the "Company"), BORDERS, INC. ("Borders"), XXXXXX
BOOK COMPANY, INC. ("Xxxxxx"), WALDENBOOKS PROPERTIES, INC. ("WPI"), BORDERS
PROPERTIES, INC. ("BPI"), WILMINGTON TRUST COMPANY, not in its individual
capacity, except as expressly stated herein, but solely as Owner Trustee ("Owner
Trustee"), XXX PROJECT FUNDING CORP. I, as Investor ("Investor"), SUNTRUST BANK,
as Co-Arranger, Administrative Agent ("Administrative Agent"), Real Estate
Administrative Agent ("Real Estate Administrative Agent") and Documentation
Agent ("Documentation Agent"), and the Lenders party thereto (the "Lenders").
BACKGROUND
1. The Company, Borders, Walden, WPI, BPI, Owner Trustee, Investor,
Administrative Agent, Real Estate Administrative Agent, Documentation Agent and
certain of the Lenders are parties to that certain Participation Agreement,
dated as of November 22,1995, which was Amended and Restated October 17, 1997,
and which was amended pursuant to the Omnibus Amendment dated as of June 21,
2002 and Omnibus Amendment No. 2 dated as of May 20, 2003 (as heretofore
amended, the "Participation Agreement")
2. The parties hereto desire to terminate the facility provided pursuant
to the Participation Agreement and the documents related thereto.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Agreement and not
otherwise defined herein, shall have the meanings assigned thereto in the
Participation Agreement.
SECTION 2. Termination. As of the Effective Date (as hereinafter defined),
the parties hereto hereby agree that all of rights and obligations of the
Lessees, the Owner Trustee, the Investor, the Lenders, the Guarantors, the Real
Estate Administrative Agent, the Documentation Agent and the Administrative
Agent pursuant to the Participation Agreement and the other Operative Agreements
(other than the Ground Leases), including the Commitments of the Lenders
pursuant to the Participation Agreement and the Credit Agreement, shall be
terminated and shall be of no further force and effect, provided that the
obligations of the Lessees and the Guarantors set forth in Sections 13.01,
13.02, 15.01 and 15.14 of the Participation Agreement, Section 5.6 of the Credit
Agreement and all other provisions of the Operative Agreements which explicitly
survive the termination of the Operative Agreements shall survive the
termination effected by this Agreement; provided that any obligation of the
Owner Trustee that survives the termination of the Operative Documents is hereby
assigned to the Lessees and the Lessees hereby accept such assignment. The
"Effective Date" shall mean the date on which the Administrative Agent shall
have received, in immediately available funds, an amount equal to (i)
$13,809,826.27, which amount reflects the sum of the outstanding Revolving
Credit Loans, accrued interest thereon, outstanding Facility Fee and amounts due
under Section 5.6 of the
Credit Agreement owing to the Lenders to and including July 22, 2004, plus (ii)
$9,052.50 for legal fees and disbursements due to Mayer, Brown, Xxxx & Maw LLP.
SECTION 3. UCC Terminations. The Lenders, the Owner Trustee, the Investor,
the Real Estate Administrative Agent, the Documentation Agent and the
Administrative Agent hereby authorize the Lessees to file any terminations of
any UCC financing statements filed against any Lessee in favor of the Real
Estate Documentation Agent or the Administrative Agent in connection with the
Operative Documents.
SECTION 4. Instruction to Trustee. By its execution hereof, each of the
Lessees and the Agents hereby authorizes and instructs Wilmington Trust Company,
as Owner Trustee, to execute, delivery and perform this Agreement
SECTION 5. Miscellaneous. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. This Agreement
may be executed by the parties hereto on separate counterparts, each of which
shall constitute an original, and all of which together shall constitute one and
the same agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date above written.
BORDERS GROUP, INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial Officer
BORDERS, INC., as a Lessee and as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
PLANET MUSIC, INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
BORDERS PROPERTIES, INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
WALDENBOOKS PROPERTIES, INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
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BORDERS ONLINE, LLC , as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
BORDERS OUTLET, INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
BORDERS FULFILLMENT, INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
THE LIBRARY, LTD., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
XXXXXX BOOK COMPANY, INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
BORDERS ONLINE, INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
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WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Owner
Trustee
By: /s/ Xxxxxx X. Xxxx
------------------------------------------
Name Printed: Xxxxxx X. Xxxx
Title: Assistant Vice President
XXX PROJECT FUNDING CORP. I
By:___________________________________________
Name Printed:_________________________________
Title: _______________________________________
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WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Owner Trustee
By: ____________________________________________
Name Printed: __________________________________
Title: _________________________________________
XXX PROJECT FUNDING CORP. I
BY: /s/ Xxxx Xxxxxx
--------------------------------------------
Name Printed: Xxxx Xxxxxx
Title: Vice President
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SUNTRUST BANK, as Documentation Agent,
Administrative Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxxx, III
--------------------------------------------
Name Printed: Xxxxxxx X. Xxxxxxx, III
Title: Director
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HIBERNIA NATIONAL BANK, as a Lender
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name Printed: Xxxxx X. Xxxxx
Title: V.P.
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XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC., as a Lender
BY: /s/ Xxxxxxx X. XXXXX
--------------------------------------------
Name Printed: Xxxxxxx X. Xxxxx
Title: VP
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