exv10w1



 





Exhibit 10.1




AMENDMENT NO. 1

to the

SECOND AMENDED AND RESTATED MULTICURRENCY

REVOLVING CREDIT AGREEMENT




     This AMENDMENT NO. 1, dated as of April 2, 2007 (the “Amendment”), to the SECOND
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”), WALDEN BOOK COMPANY, INC., a Colorado corporation (“Walden”), BGP (UK)
LIMITED, a company with limited liability organized under the laws of England (“BGP
(UK)” and together with BGI, Borders and Walden, 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) BORDERS BOOKS IRELAND LIMITED, a company with limited liability
organized under the laws of Ireland (the “Irish Borrower”), (e) 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”), (f) the lending institutions listed
from time to time on Schedule 1 (the “Lenders”), (g) BANK OF AMERICA, N.A.,
as administrative agent and as collateral agent for itself and such other lending institutions (the
“Administrative Agent”), (h) JPMORGAN CHASE BANK, N.A. and WELLS FARGO RETAIL FINANCE, LLC,
each as a syndication agent for itself and such other lending institutions (collectively, the
“Co-Syndication Agents”), (i) GENERAL ELECTRIC CAPITAL CORPORATION and LASALLE RETAIL
FINANCE, a division of LA SALLE BUSINESS CREDIT, LLC , each as documentation agent for itself and
such other lending institutions (collectively, the “Co-Documentation Agents”) and (j) BANK
OF AMERICA, N.A., 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 Second Amended
and Restated Multicurrency Revolving Credit Agreement dated as of July 31, 2006 (as amended and in
effect from time to time, the “Credit Agreement”);



     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:



 









 





-2-





     (a) Amendment to §1.1 of the Credit
Agreement. The first sentence of the definition of Investments in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety to read as follows:




     Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) by any Person for the acquisition of stock, membership
interests, partnership interests or other equity interests, other than repurchases
or redemptions of stock, membership interests, partnership interests or other equity
interests of such Person, or Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, or in respect of any guaranties (or other
commitments as described under Indebtedness), or obligations of, any Person.




     (b) Amendment to §9.1 of the Credit
Agreement. Section 9.1(i) of the Credit Agreement is hereby amended and restated in
its entirety as follows:




     ”(i) unsecured Indebtedness of BGI having a maturity at least three (3) months
after the Maturity Date, in aggregate principal amount not to exceed $300,000,000;
provided that at the time of incurrence of such Indebtedness, no Default or
Event of Default has occurred and is continuing or would result therefrom; and”




     (c) Amendment to §9.4 of the Credit
Agreement. Section 9.4 of the Credit Agreement is hereby amended by adding new
subsections (d) and (e) as follows:




               ”(d) solely in connection with the issuance of the unsecured Indebtedness of BGI
permitted under §9.1(i) to be issued in April 2007, BGI and its Subsidiaries may enter into
(i) a derivatives transaction with one or more Derivatives Counterparties obligating BGI or
any of its Subsidiaries to make payments on or substantially concurrently with the date of
the issuance of such unsecured Indebtedness to such Derivatives Counterparties, if such
transaction is entered into for the purpose of hedging in connection with such unsecured
Indebtedness or reducing potential equity dilution if such unsecured Indebtedness is
converted into equity; provided that the aggregate amount of any such payment is
made with (or netted out of) the proceeds of such unsecured Indebtedness, and (ii) a
derivatives transaction with one or more Derivatives Counterparties pursuant to which BGI or
any of its Subsidiaries may be required to make a payment, but only to the extent that
either (A) after taking into account any substantially concurrent payments made by such
Derivatives Counterparty to BGI or its Subsidiaries permitted to be offset by the terms of
such derivatives or other transaction, neither BGI nor any of its Subsidiaries is obligated
to make further payments to such Derivatives Counterparty in respect of such derivatives
transaction, or (B) such payment is made in shares of Capital Stock of BGI, or to the extent
that shares of Capital Stock of BGI are exchanged generally for the right to receive cash
and/or other assets or securities, then such cash and/or other assets or securities ;
provided that this clause (B) does not permit BGI to deliver cash and/or other
assets or securities to Derivatives Counterparties except to the extent it is permitted to
deliver such cash
and/or other assets or securities to holders of shares of Capital Stock of BGI
generally; and



 









 





-3-





               (e) solely in connection with the issuance of the unsecured Indebtedness of BGI
permitted under §9.1(i) to be issued in April 2007, BGI and its Subsidiaries may enter into
a derivatives transaction with one or more Derivatives Counterparties obligating BGI or any
of its Subsidiaries to make deliveries of its Capital Stock after the date of the issuance
of such unsecured Indebtedness to such Derivatives Counterparties as a result of any change
in market value of any Capital Stock of BGI or such Subsidiary.”




     (d) Amendment to §9.15 of the Credit
Agreement. Section 9.15 of the Credit Agreement is hereby amended and restated in
its entirety as follows:




     ”9.15 Payments of Senior Indebtedness.




     The Borrowers may, and may permit any of their Subsidiaries to, make (i)
any payment (including prepayment), redemption or repurchase of principal (whether
mandatory, voluntary, upon conversion or otherwise) in respect of the unsecured
Indebtedness of BGI permitted under §9.1(i), or (ii) any optional or voluntary
prepayment, redemption or repurchase of any Indebtedness ranking pari
passu in priority of payment with the Obligations (each such payment
described in clause (i) and (ii) above, a “Senior Indebtedness Payment”) so
long as (a) no Default or Event of Default has occurred and is continuing or would
result therefrom, and (b) BGI delivers to the Lenders on or before the date on which
it or any of its Subsidiaries agrees to or makes such Senior Indebtedness Payment a
certificate of the principal financial or accounting officer of the Borrowers
certifying as accurate and complete the monthly pro forma financial
projections attached thereto and demonstrating immediately after giving effect to
such Senior Indebtedness Payment (1) the Total Facility Usage Ratio would not exceed
90% and (2) the Total Facility Usage Ratio would not exceed 90% as determined on a
pro forma basis over the six month period immediately following the effective date
of such Senior Indebtedness Payment, in form and substance satisfactory to the
Administrative Agent, based on reasonable projections of the financial performance
of the Borrowers. BGI and its Subsidiaries may not make any Senior Indebtedness
Payments other than those payments permitted by this §9.15. Notwithstanding the
foregoing, BGI shall be permitted to make interest payments in respect of the
unsecured Indebtedness of BGI permitted under §9.1(i).”



     §3. 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, and subject to the terms thereof. 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



 









 





-4-



Agreement” in the Security Documents and the other Loan Documents shall hereafter refer to the
Credit Agreement as amended hereby.




     §4. Conditions to Effectiveness. This Amendment shall be deemed
effective as of the date hereof (the “Effective Date”) when duly executed by the Borrowers,
the Guarantors, the Administrative Agent and the Required Lenders and delivered to the
Administrative Agent.



     §5. 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.



     §6. 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.



 









 





-5-




     §7. 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.



     §8. Governing Law. THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF SAID STATE WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OR CHOICE OF
LAW.



     §9. 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.



     §10. 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).



[Remainder of page intentionally left blank]




 









 





     IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above
written.



	 	 	 	 	 	 	 
	 	 	BORDERS GROUP, INC.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Edward W. Wilhelm
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Edward W. Wilhelm
	 

	 	 	 	Title:
	 	Senior Vice President, Finance and
Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	BORDERS, INC.

WALDEN BOOK COMPANY, INC.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Edward W. Wilhelm
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Edward W. Wilhelm
	 

	 	 	 	Title:
	 	Senior Vice President, Treasurer
and Assistant Secretary
	 
	 	 	 	 	 	 
	 	 	BGP (UK) LIMITED

BORDERS (UK) LIMITED
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Edward W. Wilhelm
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Edward W. Wilhelm
	 

	 	 	 	Title:
	 	Director
	 
	 	 	 	 	 	 
	 	 	BORDERS AUSTRALIA PTY LTD
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Edward W. Wilhelm
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Edward W. Wilhelm
	 

	 	 	 	Title:
	 	Director
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ George L. Jones
	 	 	 	 	 
	 

	 	 	 	Name:
	 	George L. Jones
	 

	 	 	 	Title:
	 	Director






 









 





	 	 	 	 	 	 	 
	 	 	BORDERS BOOKS IRELAND LIMITED
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Edward W. Wilhelm
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Edward W. Wilhelm
	 

	 	 	 	Title:	 	 






 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., individually and as
Administrative Agent and Swingline Lender
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Kathleen A. Dimock
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Kathleen A. Dimock
	 

	 	 	 	Title:
	 	Managing Director
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., successor by merger to
Fleet National Bank, as Issuing Bank
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/Kathleen A. Dimock
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Kathleen A. Dimock
	 

	 	 	 	Title:
	 	Managing Director






 









 





	 	 	 	 	 	 	 
	For purposes of §3 hereof:

 
PLANET MUSIC, INC.
BORDERS PROPERTIES, INC.
WALDENBOOKS PROPERTIES, INC.
BORDERS OUTLET, INC.
THE LIBRARY, LTD.
BORDERS ONLINE, INC.	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Edward W. Wilhelm	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Edward W. Wilhelm
	 	 
	 

	 	Title:
	 	Senior Vice President, Treasurer
and Assistant Secretary	 	 
	 
	 	 	 	 	 	 
	BORDERS FULFILLMENT, INC.	 	 
	 
	 	 	 	 	 	 
	By::	 	/s/ Edward W. Wilhelm	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Edward W. Wilhelm	 	 
	 

	 	Title:
	 	Senior Vice President, Finance
and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	BORDERS ONLINE, LLC	 	 
	 
	 	 	 	 	 	 
	By:	 	BORDERS, INC., its Sole Member	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Edward W. Wilhelm	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Edward W. Wilhelm	 	 
	 

	 	Title:
	 	Senior Vice President, Treasurer
and Assistant Secretary	 	 






 









 





	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ David A. Lehrner
	 	 	 	 	 
	 

	 	 	 	Name:
	 	David A. Lehrner
	 

	 	 	 	Title:
	 	Vice President






 









 





	 	 	 	 	 	 	 
	 	 	WELLS FARGO RETAIL FINANCE, LLC
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Emily Abrahamson
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Emily Abrahamson
	 

	 	 	 	Title:
	 	Assistant Vice President






 









 





	 	 	 	 	 	 	 
	 	 	LASALLE RETAIL FINANCE, a Division of LaSalle Business
Credit, LLC, as Agent for LaSalle Bank Midwest National
Association
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Roger Malouf
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Roger Malouf
	 

	 	 	 	Title:
	 	AVP






 









 





	 	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL CORPORATION
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Rebecca A. Ford
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Rebecca A. Ford
	 

	 	 	 	Title:
	 	Duly Authorized Signatory






 









 





	 	 	 	 	 	 	 
	 	 	THE CIT GROUP/BUSINESS CREDIT, INC.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Matthew DeFranco
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Matthew DeFranco
	 

	 	 	 	Title:
	 	Assistant Vice President






 









 





	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BUSINESS CREDIT, INC.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Joseph L. Kwasny
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Joseph L. Kwasny
	 

	 	 	 	Title:
	 	Director






 









 





	 	 	 	 	 	 	 
	 	 	BMO CAPITAL MARKETS FINANCING, INC.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Lynne Ciaccia
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Lynee Ciaccia
	 

	 	 	 	Title:
	 	Vice President






 









 





	 	 	 	 	 	 	 
	 	 	UBS AG, STAMFORD BRANCH
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Irja R. Otsa
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Irja R. Otsa
	 

	 	 	 	Title:
	 	Associate Director Banking Products

Services, US
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Mary E. Evans
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Mary E. Evans
	 

	 	 	 	Title:
	 	Associate Director Banking Products

Services, US






 









 





	 	 	 	 	 	 	 
	 	 	CHARTER ONE BANK, N.A.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ C. Timothy O’Rourke
	 	 	 	 	 
	 

	 	 	 	Name:
	 	C. Timothy O’Rourke
	 

	 	 	 	Title:
	 	Vice President






 









 





	 	 	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Thomas A. Majeski
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Thomas A. Majeski
	 

	 	 	 	Title:
	 	Vice President






 









 





	 	 	 	 	 	 	 
	 	 	SUNTRUST BANK
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 





	 	 	 	 	 	 	 
	 	 	UNION BANK OF CALIFORNIA N.A.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Brent Housteau
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Brent Housteau
	 

	 	 	 	Title:
	 	Vice President






 









 





	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Nadine M. Eames
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Nadine M. Eames
	 

	 	 	 	Title:
	 	Vice President






 









 





	 	 	 	 	 	 	 
	 	 	COMERICA BANK
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Blake Arnett
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Blake Arnett
	 

	 	 	 	Title:
	 	Assistant Vice President






 









 





	 	 	 	 	 	 	 
	 	 	U.S. BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 





	 	 	 	 	 	 	 
	 	 	FORTIS CAPITAL CORP.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Timothy Streb
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Timothy Streb
	 

	 	 	 	Title:
	 	Managing Director
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Egens Vou Itercou Scholtew
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Egens Vou Itercou Scholtew
	 

	 	 	 	Title:
	 	VP






 









 





	 	 	 	 	 	 	 
	 	 	AMSOUTH BANK
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Cynthia Marinos
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Cynthia Marinos
	 

	 	 	 	Title:
	 	Attorney In Fact






 









 





	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK, EASTERN MICHIGAN
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Brian Jelinksi
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Brian Jelinski
	 

	 	 	 	Title:
	 	Officer






 









 





	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title: