2002 Termination Agreement

EX-10.63 8 k87892exv10w63.txt 2002 TERMINATION AGREEMENT EXHIBIT 10.63 TERMINATION AGREEMENT THIS TERMINATION AGREEMENT, dated as of July 22, 2004 (this "Agreement"), is among BORDERS GROUP, INC., a Michigan corporation ("BGI"), and certain Subsidiaries of BGI (individually, a "Guarantor" and collectively, the "Guarantors"), as Guarantors, BORDERS, INC., a Colorado corporation ("Borders"), and certain other Subsidiaries of BGI, (individually, a "Lessee" and, collectively, the "Lessees"), as Lessees, ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership (the "Lessor"), certain financial institutions parties hereto as lenders (together with any other financial institution that becomes a party hereto as a lender, collectively referred to as "Lenders" and individually as a "Lender"), and SUNTRUST BANK, a Georgia state banking corporation, as agent for the Lenders (in such capacity, the "Agent") and Documentation Agent. BACKGROUND 1. The Guarantors, the Lessees, Lessor, the Lenders and the Agent, are parties to that certain Master Agreement, dated as of June 21, 2002 (as heretofore amended or modified from time to time, the "Master Agreement"). 2. No Leased Properties were acquired by the Lessor pursuant to the Master Agreement, and the parties hereto desire to terminate the facility provided pursuant to the Master 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 Master 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 Lessor, the Lenders, the Guarantors and the Agent pursuant to the Master Agreement and the other Operative Documents, including the Commitments of the Funding Parties pursuant to the Master 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 7.1, 7.2, 7.4, 7.5 and Section 8.3 of the Master Agreement and all other obligations of the Lessees and the Guarantors that explicitly survive the termination of the Operative Documents shall survive the termination effected by this Agreement. The "Effective Date" shall mean the date on which the Agent shall have received, in immediately available funds, an amount equal to (i) $8718.12, which amount reflects the sum of the outstanding Facility Fee owing to the Funding Parties to and including July 22, 2004, plus (ii) $500.00 for legal fees and disbursements due to Brown McCarroll, L.L.P. SECTION 3. UCC Terminations. The Lenders, the Lessor and the Agent hereby authorize the Lessees to file any terminations of any UCC financing statements filed against any Lessee in favor of the Agent in connection with the Operative Documents. SECTION 4. Miscellaneous. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia. 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. 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/ Edward W. Wilhelm --------------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Chief Financial Officer BORDERS, INC., as a Lessee and as a Guarantor By: /s/ Edward W. Wilhelm --------------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Treasurer PLANET MUSIC, INC., as a Guarantor By: /s/ Edward W. Wilhelm --------------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Treasurer BORDERS PROPERTIES, INC., as a Guarantor By: /s/ Edward W. Wilhelm --------------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Treasurer WALDENBOOKS PROPERTIES, INC., as a Guarantor By: /s/ Edward W. Wilhelm --------------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Treasurer S-l BORDERS ONLINE, LLC, as a Guarantor By: /s/ Edward W. Wilhelm -------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Treasurer BORDERS OUTLET, INC., as a Guarantor By: /s/ Edward W. Wilhelm -------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Treasurer BORDERS FULFILLMENT, INC., as a Guarantor By: /s/ Edward W. Wilhelm -------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Treasurer THE LIBRARY, LTD., as a Guarantor By: /s/ Edward W. Wilhelm -------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Treasurer WALDEN BOOK COMPANY, INC., as a Guarantor By: /s/ Edward W. Wilhelm -------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Treasurer BORDERS ONLINE, INC., as a Guarantor By: /s/ Edward W. Wilhelm -------------------------------------- Name Printed: Edward W. Wilhelm Title: Senior Vice President and Treasurer S-2 ATLANTIC FINANCIAL GROUP, LTD., as Lessor By: Atlantic Financial Managers, Inc., its General Partner By: /s/ Stephen Brookshire -------------------------------------- Name Printed: Stephen Brookshire Title: President SUNTRUST BANK, as Agent, Documentation Agent and as a Lender By: -------------------------------------- Name Printed: Title: HIBERNIA NATIONAL BANK, as a Lender By: -------------------------------------- Name Printed: Title: MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC., as a Lender By: -------------------------------------- Name Printed: Title: S-3 ATLANTIC FINANCIAL GROUP, LTD., as Lessor By: Atlantic Financial Managers, Inc., its General Partner By: ------------------------------------- Name Printed: Stephen Brookshire Title: President SUNTRUST BANK, as Agent, Documentation Agent and as a Lender By: /s/ Charles B. Biggers III ------------------------------------- Name Printed: Charles B. Biggers III Title: Director HIBERNIA NATIONAL BANK, as a Lender By: ------------------------------------- Name Printed: Title: MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC., as a Lender By: ------------------------------------- Name Printed: Title: S-4 ATLANTIC FINANCIAL GROUP, LTD., as Lessor By: Atlantic Financial Managers, Inc., its General Partner By: ------------------------------------- Name Printed: Stephen Brookshire Title: President SUNTRUST BANK, as Agent, Documentation Agent and as a Lender By: ------------------------------------- Name Printed: Title: HIBERNIA NATIONAL BANK, as a Lender By: /S/ Laura K. Watts ------------------------------------- Name Printed: Laura K. Watts Title: V.P. MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC., as a Lender By: ------------------------------------- Name Printed: Title: S-5 MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC., as a Lender By: /s/ Patrick A. Lucas ------------------------------------- Name Printed: Patrick A. Lucas Title: V.P. S-6