Exhibit 10.8
THIRD AMENDMENT
TO THE SENIOR SECURED CREDIT AGREEMENT, dated as of March 30, 2009
(this “ Amendment ”), made
by and among (a) Borders Group, Inc., a Michigan corporation (the
“ Borrower ”), (b)
Pershing Square Credit Partners LLC, a Delaware limited liability
company (“ Pershing Square ” or
a “ Lender ”), (c) PSRH, Inc., a Cayman
Islands exempted company (a “ Lender ”,
and collectively with Pershing Square, the “ Lenders
”), and (d) Pershing Square Capital Management, L.P., a
Delaware limited partnership (the “ Collateral Agent
” and the “ Administrative Agent ”).
Capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Credit Agreement (as
hereinafter defined).
RECITALS
WHEREAS, the
Borrower, the Lenders, the Collateral Agent, the Administrative
Agent and certain other parties entered into that certain Senior
Secured Credit Agreement, dated as of April 9, 2008 as amended by
the First Amendment to the Senior Secured Credit Agreement, dated
as of December 22, 2008 and the Second Amendment to the Senior
Secured Credit Agreement, dated as of February 13, 2009 (the
“ Credit Agreement ”); and
WHEREAS, the
Borrower, the Lenders, the Collateral Agent and the Administrative
Agent desire to amend the Credit Agreement in accordance with
Section 14.12 of the Credit Agreement in the manner set forth in
this Amendment in order to extend the Maturity Date until April 1,
2010.
NOW, THEREFORE,
in order to carry out their intent as expressed above and in
consideration of the mutual agreements hereinafter contained, and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
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1.
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Section 1.1 of the Credit Agreement is hereby
amended by deleting the definition of “Maturity Date”
and replacing it in its entirety with the following new
definition:
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“Maturity Date. April 1,
2010.”
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2.
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References in the Credit Agreement to
“this Credit Agreement” or any particular Section
thereof shall be deemed to refer to the Credit Agreement or such
Section as amended hereby.
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3.
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The Borrower represents and warrants to the
Lenders and the Agents as follows:
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(i)
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All representations and warranties in the
Credit Agreement other than Section 6.6.2, Section 6.18, Section
6.19, Section 6.26, Section 6.27 and Section 6.28 are true and
correct with the same effect as if made at and as of the date
hereof (except to the extent that such representations and
warranties relate expressly to an earlier date); provided , that (a)
clauses (c) and (d) of the definition of “Material Adverse
Effect” shall be deemed to
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be omitted for purposes of this
representation, (b) the related disclosure schedules to the Credit
Agreement shall be deemed amended by any facts set forth in the
Borrower’s public filings with the Securities Exchange
Commission from the date of the Credit Agreement to date hereof and
the draft Form 10-K for the fiscal year ended January 31, 2009, a
copy of which has been provided to the Administrative Agent’s
Special Counsel prior to the date hereof, (c) there may be other
changes to the related disclosure schedules to the Credit Agreement
since the date of the Credit Agreement, and to the extent that such
changes are not material and have resulted from the
Borrower’s conduct of its business in the ordinary course,
such changes shall not be deemed to be a breach of this
representation; provided further that for purposes of Section 6.4.2
the term “FQ3 2007” shall be replaced with the term
“FQ3 2008”.
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(ii)
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All filings, assignments, pledges and deposits
of documents or instruments have been made and all other actions
have been taken that are necessary or advisable, under applicable
law, to establish and perfect the Administrative Agent’s
security interest in the Collateral, including, with respect to any
United Kingdom security, the filing of any applicable UK security
documents at the Companies Registration Office under Section 395 of
the Companies Act of 1985 and such other filing as may be required
under English law. The Collateral and the Administrative
Agent’s rights with respect to the Collateral are not subject
to any setoff, claims, withholdings or other defenses and the
Borrower and all Subsidiaries of the Borrower that are a party to
Pledge Agreement are the owners of the Collateral free from any
Lien.
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(iii)
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The Credit Agreement or any of the other Loan
Documents do not contain any untrue statement of a material fact or
omit to state a material fact (known to the Borrower or any of its
Subsidiaries in the case of any document or information not
furnished by it or any of its Subsidiaries) necessary in order to
make the statements herein or therein not misleading.
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(iv)
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The representations and warranties of the
Borrower and any of its Subsidiaries contained in Section 6.1.2,
Section 6.1.3 and Section 6.2 of the Credit Agreement are true and
correct at and as of the date hereof, with the same effect as if
made with respect to this Amendment, at and as of the date
hereof.
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4.
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Notwithstanding anything in this Amendment to
the contrary, this Amendment shall become effective on March 31,
2009 (the “ Effective Date ”),
provided that:
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(i)
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on or prior to the Effective Date, the
Administrative Agent shall have received a duly executed copy of
this Amendment by each of the parties hereto;
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(ii)
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the Borrower (including without limitation any
of its affiliates) shall not have provided any notice of acceptance
(or any other similar notice) to Pershing Square Capital
Management, L.P. pursuant to the Purchase Offer Letter, including
without limitation under Section 1 thereof, on or prior to the
Effective Date;
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(iii)
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the Administrative Agent shall have received a
certificate of the Borrower signed by an authorized officer of the
Borrower to the effect that each of the representations and
warranties of the Borrower in this Amendment are true and correct
at and as of the Effective Date;
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(iv)
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no Default or Event of Default shall have
occurred and be continuing as of the Effective Date;
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(v)
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the Borrower shall have paid to the Lenders or
the Administrative Agent, as appropriate, the fees and expenses of
the Administrative Agent’s Special Counsel.
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5.
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Except as expressly amended hereby, the Credit
Agreement remains unmodified and is in full force and effect.
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6.
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This Amendment may be executed in two or more counterparts, each of
which constitutes an original and all of which, when taken
together, constitute one agreement. This Amendment may be delivered
by facsimile and when executed and so delivered, shall be an
original for all purposes.
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7.
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THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, the parties hereto
have executed this Amendment as of the day and year first above
written.
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BORROWER:
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BORDERS GROUP, INC.
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By:
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/s/ Mark Bierley
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Name: Mark Bierley
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