FORM OF NOTE
Exhibit 4.2
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
STAPLES, INC.
9.750% Senior Notes Due January 15, 2014
CUSIP NO. 000000XX0
No. $
Staples, Inc., a corporation organized under the laws of the state of Delaware (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of Dollars (which principal amount may from time to time be increased or decreased to such other principal amounts by adjustments made on the records of the Trustee hereinafter referred to in accordance with the Indenture) on January 15, 2014, and, subject to adjustment as hereinafter provided, to pay interest thereon from January 15, 2009 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on January 15 and July 15 in each year commencing July 15, 2009 at the rate of 9.750% per annum, until the principal hereof is paid or made available for payment, and to the extent that the payment of such interest shall be legally enforceable at the interest rate then in effect on any overdue principal and on any overdue installment of interest until paid.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the January 1 or July 1 (regardless of whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. If any Interest Payment Date falls on a day that is not a Business Day, it shall be postponed to the following Business Day. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Payment of the principal of and interest on this Security will be made at the office or agency of the Trustee or any Paying Agent maintained for that purpose in the City of New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Interest Rate Adjustment
The interest rate payable on this series of Securities will be subject to adjustments from time to time if Xxxxx’x Investors Service, Inc. (“Moody’s”) (or, if applicable, any Substitute Rating Agency (as defined below)) or Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc. (“S&P”) (or, if applicable, any Substitute Rating Agency) downgrades (or subsequently upgrades) the rating assigned to this series of Securities, as set forth below.
If the rating with respect to this series of Securities from Moody’s or any Substitute Rating Agency thereof is decreased to a rating set forth in the immediately following table, the interest rate on this series of Securities will increase from the interest rate payable on this series of Securities set forth on the face of this Security by the percentage points set forth below opposite that rating.
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Xxxxx’x Rating * |
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Ba1 |
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0.25 |
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Ba2 |
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0.50 |
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Ba3 |
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0.75 |
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B1 or below |
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1.00 |
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* Including the equivalent rating of any Substitute Rating Agency.
If the rating with respect to this series of Securities from S&P or any Substitute Rating Agency thereof is decreased to a rating set forth in the immediately following table, the interest rate on this series of Securities will increase from the interest rate payable on this series of Securities on the date set forth on the face of this Security by the percentage points set forth below opposite that rating.
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S&P Rating * |
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BB+ |
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0.25 |
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BB |
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0.50 |
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BB- |
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0.75 |
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B+ or below |
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1.00 |
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* Including the equivalent rating of any Substitute Rating Agency.
If at any time the interest rate on this series of Securities has been adjusted upward as a result of a decrease in a rating by an Interest Rate Rating Agency and that Interest Rate Rating Agency subsequently increases its rating on this series of Securities to any of the ratings set forth in the tables above, the per annum interest rate on this series of Securities will be decreased such that the per annum interest rate equals the interest rate set forth on the face of this Security plus the percentage points set forth opposite the ratings in effect immediately following the increase in the tables above; provided, however, that if Moody’s or any Substitute Rating Agency subsequently increases its rating on this series of Securities to “Baa3” (or its equivalent if with respect to any Substitute Rating Agency) or higher and S&P or any Substitute Rating Agency subsequently increases its rating on this series of Securities to “BBB-” (or its equivalent if with respect to any Substitute Rating Agency) or higher, the per annum interest rate on this series of Securities will be decreased to the interest rate set forth on the face of this Security.
No adjustment in the interest rate on this series of Securities shall be made solely as a result of an Interest Rate Rating Agency ceasing to provide a rating. If at any time less than two Interest Rate Rating Agencies provide a rating on this series of Securities, the Company will use commercially reasonable efforts to obtain a rating on this series of Securities from another “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, to the extent one exists, and if another nationally recognized statistical rating organization rates this series of Securities (such organization, as certified by a resolution of the Company’s board of directors, a “Substitute Rating Agency”), for purposes of determining any increase or decrease in the per annum interest rate on this series of Securities pursuant to the tables above, (1) such Substitute Rating Agency will be substituted for the last Interest Rate Rating Agency to provide a rating on this series of Securities but which has since ceased to provide such rating, (2) the relative ratings scale used by such Substitute Rating Agency to assign ratings to senior unsecured debt will be determined in good faith by an independent investment banking institution of national standing appointed by the
Company and, for purposes of determining the applicable ratings included in the table above with respect to such Substitute Rating Agency, such ratings shall be deemed to be the equivalent ratings used by Moody’s and S&P in such tables, and (3) the per annum interest rate on this series of Securities will increase or decrease, as the case may be, such that the interest rate equals the interest rate set forth on the face of this Security plus the appropriate percentage, if any, set forth opposite the rating from such Substitute Rating Agency in the applicable table above (taking into account the provisions of clause (2) above) (plus any applicable percentage points resulting from a decreased rating by the other Interest Rate Rating Agency). For so long as (a) only one Interest Rate Rating Agency provides a rating on this series of Securities, any increase or decrease in the interest rate on this series of Securities necessitated by a reduction or increase in the rating by that Interest Rate Rating Agency shall be twice the applicable percentage set forth in the applicable table above and (b) no Interest Rate Rating Agency provides a rating on this series of Securities, the interest rate on this series of Securities will increase to, or remain at, as the case may be, 2.00% above the interest rate set forth on the face of this Security. If Moody’s or S&P ceases to rate this series of Securities or make a rating of this series of Securities publicly available for reasons within the Company’s control, the Company will not be entitled to obtain a rating from a Substitute Rating Agency and the increase or decrease in the per annum interest rate on this series of Securities shall be determined in the manner described above as if either only one or no Interest Rate Rating Agency provides a rating on this series of Securities, as the case may be.
Each adjustment required by any decrease or increase in a rating set forth above, whether occasioned by the action of Moody’s, S&P or any Substitute Rating Agency, shall be made independent of (and in addition to) any and all other adjustments. In no event shall (1) the per annum interest rate on this series of Securities be reduced below the interest rate as set forth on the face of this Security or (2) the per annum interest rate on this series of Securities exceed 2.00% above the interest rate set forth on the face of this Security.
Any interest rate increase or decrease described above will take effect on the next business day after the rating change has occurred. The Company shall promptly advise the Trustee of each change in interest rate, change in rating or the appointment and identity of any Substitute Rating Agency by Company Notice. The Trustee shall not be responsible for determining the interest rate that may be in effect from time to time.
The interest rates on this series of Securities will permanently cease to be subject to any adjustment described above (notwithstanding any subsequent decrease in the ratings by any Interest Rate Rating Agency) if this series of Securities becomes rated “A3” (or its equivalent) or higher by Moody’s (or any Substitute Rating Agency) and “A-” (or its equivalent) or higher by S&P (or any Substitute Rating Agency), or one of those ratings if this series of Securities are rated by only one Interest Rate Rating Agency, in each case with a stable or positive outlook.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
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Dated: January 15, 2009 |
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STAPLES, INC. |
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By: |
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Name: |
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Title: |
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Attest: |
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Name: |
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Title: |
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Dated: January 15, 2009
This is one of the Securities of the series designed herein referred to in the Indenture.
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HSBC Bank USA, |
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National Association, as Trustee |
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By: |
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Authorized Signatory |
[Reverse of Note]
This Security is one of a duly authorized issue of Securities of the Company designated as its 9.750% Senior Notes due 2014 (herein called the “Securities”), limited initially (except as otherwise provided in the Indenture referred to below) in aggregate principal amount to $1,500,000,000, issued and to be issued under an Indenture, dated as of January 15, 2009 (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), among the Company, the Subsidiary Guarantors named therein, and HSBC Bank USA, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture). The Company may, without the consent of the Holders, create and issue additional Securities (the “Additional Securities”) ranking equally with the Securities and otherwise similar in all respects so that the Additional Securities shall be consolidated and form a single series with the Securities. The Company may not issue Additional Securities if an Event of Default shall occur and be continuing with respect to the Securities. Reference is hereby made to the Indenture, all Supplemental Indentures thereto and all Officers’ Certificates setting forth the terms of Securities of this series pursuant to Section 301 for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Subsidiary Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
In the event of a deposit or withdrawal of an interest in this Security (including upon an exchange, transfer, redemption or repurchase of this Security in part only) effected in accordance with the Applicable Procedures, the Security Registrar, upon receipt of notice of such event from the Depositary’s custodian for this Security, shall make an adjustment on its records to reflect an increase or decrease of the Outstanding principal amount of this Security resulting from such deposit or withdrawal, as the case may be.
The Securities of this series are redeemable in whole or in part, at the option of the Company at any time or from time to time, on not less than 30 or more than 60 days’ prior notice mailed to the Holders of the Securities of this series, at a Redemption Price equal to the greater of the following amounts:
· 100% of the principal amount of the Securities of this series being redeemed on the Redemption Date; and
· the sum of the present values of the remaining scheduled payments of principal and interest on this series of Securities being redeemed on that Redemption Date (not including any portion of such payments representing interest accrued to the Redemption Date) discounted to the Redemption Date on a semiannual basis at the Adjusted Treasury Rate plus 50 basis points, as determined by the Reference Treasury Dealer,
plus, in each case, accrued and unpaid interest thereon to the Redemption Date.
For purposes of the foregoing provisions regarding the Company’s optional redemption right, the following definitions are applicable:
“Adjusted Treasury Rate” means, with respect to any redemption date applicable to this series of Securities, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
“Comparable Treasury Issue” means, with respect to this series of Securities, the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining term of those Securities of this series that are to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of this series of Securities.
“Comparable Treasury Price” means, with respect to any redemption date applicable to this series of Securities, (A) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Quotations, or (B) if the Independent Investment Banker obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations, or (C) if only one Reference Treasury Dealer Quotation is received, such Reference Treasury Dealer Quotation.
“Independent Investment Banker” means an independent investment banker of national standing appointed by the Company.
“Reference Treasury Dealer” means (A) Barclays Capital Inc., Banc of America Securities LLC and HSBC Securities (USA) Inc. and their respective successors; provided however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), we shall substitute therefor another Primary Treasury Dealer and (B) any other Primary Treasury Dealer selected by us.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any redemption date for this series of Securities, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue for this series of Securities (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third business day preceding such redemption date.
Once notice of redemption is mailed, the Securities called for redemption will become due and payable on the Redemption Date and at the applicable redemption price, plus accrued and unpaid interest to the Redemption Date. Unless the Company defaults in payment of the redemption price, on and after the Redemption Date interest will cease to accrue on the Securities or portions thereof called for redemption.
The redemption price will be calculated on the basis of a 360-day year consisting of twelve 30-day months. If fewer than all of the Securities of this series are being redeemed, the Trustee will select the Securities to be redeemed pro rata, by lot or by any other method the Trustee in its sole discretion deems fair and appropriate, in denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. Upon surrender of any Security of this series redeemed in part, the Holder of the Security will receive a new Security equal in principal amount to the unredeemed portion of the surrendered Security.
If a Change of Control Triggering Event (as defined below) occurs, unless the Company has exercised its right to satisfy and discharge or to defease this series of Securities prior to maturity as described below, Holders of this series of Securities will have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of their Securities pursuant to the offer described below (a “Change of Control Offer”). In the Change of Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate principal amount of Securities repurchased plus accrued and unpaid interest, if any, on the Securities repurchased, to the date of purchase (a “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event, the Company will be required to mail a notice to Holders of this series of Securities describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase the Securities on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (a “Change of Control Payment Date”), pursuant to the procedures required by the Indenture and described in such notice. The Company must comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with any repurchase of this series of Securities as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this series of Securities, the Company will be required to comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this series of Securities by virtue of such conflicts and compliance with law.
On the Change of Control Payment Date, the Company will be required, to the extent lawful, to:
· accept for payment all Securities of this series properly tendered pursuant to the Change of Control Offer;
· deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Securities of this series or portions of Securities of this series properly tendered; and
· deliver or cause to be delivered to the Trustee the Securities of this series properly accepted together with an Officers’ Certificate stating the
aggregate principal amount of this series of Securities or portions of this series of Securities being purchased.
The Company will not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the third party purchases all Securities of this series properly tendered and not withdrawn under its offer. In addition, the Company will not repurchase any Securities of this series if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than a default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.
For purposes of the foregoing provisions of a repurchase at the option of holders upon a Change of Control Triggering Event, the following definitions are applicable:
“Below Investment Grade Rating Event” means that the rating of this series of Securities is lowered by at least two of the three Rating Agencies (as defined below), and such series of Securities is rated below an Investment Grade Rating by at least two of the Rating Agencies, on any date during the period commencing 60 days prior to the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of this series of Securities is under publicly announced consideration for possible downgrade by any of the Rating Agencies).
“Change of Control” means the occurrence of any of the following: (1) any event (including, without limitation, any merger or consolidation), the result of which is that any Person becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding voting stock of the Company, measured by voting power; (2) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than (i) by way of merger or consolidation or (ii) to the Company or one or more direct or indirect Wholly Owned Subsidiaries of the Company), in one transaction or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to one or more Persons; (3) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the outstanding voting stock of the Company or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s voting stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the voting stock, measured by voting power, of the resulting or surviving Person (or of any direct or indirect parent company of the resulting or surviving Person) immediately after giving effect to such transaction; (4) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors; or (5) the adoption of a plan providing for
the liquidation or dissolution of the Company. Notwithstanding the foregoing, a transaction described in clause (1) above will not be deemed to involve a Change of Control if (1) the Company becomes a direct or indirect wholly-owned subsidiary of a holding company (which shall include a parent company) and (2)(A) the direct or indirect holders of the voting stock of such holding company immediately following that transaction are substantially the same as, and hold in substantially the same proportions as, the holders of the Company’s voting stock immediately prior to that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly of more than 50% of the then outstanding voting stock, measured by voting power, of such holding company. Following any such transaction, references in this definition to the Company shall be deemed to refer to such holding company. For purposes of this definition, “voting stock” of any specified Person as of any date means capital stock of such Person that is at the same time entitled to vote generally in the election of the board of directors (or comparable governing body) of such Person.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.
“Continuing Director” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of such Board of Directors on the Issue Date of this series of Securities; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors, whether or not directors on the Issue Date of this series of Securities, who were members of such Board of Directors at the time of such nomination or election.
“Fitch” means Fitch Ratings.
“Investment Grade Rating” means a rating equal to or higher than BBB-(or the equivalent) by Fitch, Baa3 (or the equivalent) by Xxxxx’x and BBB- (or the equivalent) by S&P.
“Xxxxx’x” means Xxxxx’x Investors Services, Inc.
“Rating Agencies” means (1) each of Fitch, Xxxxx’x and S&P; and (2) if any of Fitch, Xxxxx’x or S&P ceases to rate this series of Securities or fails to make a rating of this series of Securities publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company (as certified by a Board Resolution of the Company’s Board of Directors) as a replacement agency for Fitch, Xxxxx’x or S&P, or all of them, as the case may be.
“S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
The Indenture contains provisions, which will apply to the Securities of this series, for legal defeasance and covenant defeasance, in each case, upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein set forth, the obligations of the Company under the Indenture and this Security are guaranteed pursuant to Subsidiary Guarantees endorsed hereon as provided in the Indenture. Each Holder, by holding this Security, agrees to all of the terms and provisions of said Subsidiary Guarantees. The Indenture provides that a Subsidiary Guarantor shall be released from its Subsidiary Guarantee upon compliance with certain conditions.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Subsidiary Guarantors and the rights of the Holders of the Securities of any series under the Indenture at any time by the Company and the Subsidiary Guarantors and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities of that or those series of Securities affected at the time Outstanding. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all the Securities of such series, to waive compliance by the Company or the Subsidiary Guarantors with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security of such series issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Trustee, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. No service
charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of the Company, the Subsidiary Guarantors or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Subsidiary Guarantors or the Trustee nor any such agent shall be affected by notice to the contrary.
Upon execution of the certificate of authentication hereon by the Trustee, this Security shall be entitled to the benefits under the Indenture.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE, THIS SECURITY AND THE SUBSIDIARY GUARANTEE ENDORSED HEREON SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SUBSIDIARY GUARANTEE
For value received, each of the Subsidiary Guarantors named below hereby jointly and severally fully and unconditionally guarantees to the Holder of the Security upon which this Subsidiary Guarantee is endorsed, and to the Trustee on behalf of such Holder, pursuant to the Indenture and to the Trustee and its successors and assigns, regardless of the validity and enforceability of the Indenture, the Securities or the obligations of the Company under the Indenture or the Securities, that:
(i) the principal of and interest on the Securities will be promptly paid in full when due, whether at maturity, by acceleration or otherwise, and interest on the overdue principal of and interest on the Securities, to the extent lawful, and all other payment obligations of the Company to the Holders or the Trustee thereunder, under the Indenture will be promptly paid in full, all in accordance with the terms thereof, of the Indenture; and
(ii) in case of any extension of time for payment or renewal of any Securities, that the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this Subsidiary Guarantee would constitute or result in a violation of any applicable fraudulent conveyance or similar law of any relevant jurisdiction, the liability of each Subsidiary Guarantor under the Indenture and its Subsidiary Guarantee shall be reduced to the maximum amount permissible under such fraudulent conveyance or similar law.
If the Company shall default in the due and punctual payment of any obligation under the Indenture guaranteed by the Subsidiary Guarantors, including under the Securities of this series, without the necessity of action by the Trustee or any Holder of Securities, the Subsidiary Guarantor will promptly and fully make such payments in the same manner as required to have been made by the Company.
To the extent permitted by law, the obligations of each Subsidiary Guarantor hereunder shall be continuing, absolute and unconditional, and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities (A) of the Company contained in any Securities guaranteed by the Subsidiary Guarantors, including the Securities to which this Subsidiary Guarantee is affixed, or the Indenture or (B) of any other Subsidiary Guarantor, (ii) any impairment, modification, release or limitation of the liability of the Company or of any other Subsidiary Guarantor in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable federal or state bankruptcy, insolvency, reorganization or other similar laws or from the decision of any court, (iii) the assertion or exercise by the Company, any other Subsidiary Guarantor, or the Trustee of any rights or remedies under any Securities guaranteed by the Subsidiary Guarantors, including the
Securities to which this Subsidiary Guarantee is affixed, or the Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Company or any other Subsidiary Guarantor or any of their assets, or the disaffirmance of the Indenture or the Securities in any such proceeding, (v) the release or discharge of the Company or any other Subsidiary Guarantor from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (vi) the unenforceability of any Securities guaranteed by the Subsidiary Guarantors, including the Securities to which this Subsidiary Guarantee is affixed, or the Indenture or (vii) any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
Each Subsidiary Guarantor hereby (i) waives diligence, presentment, demand for payment, filing of claims with a court in the event of the merger or bankruptcy of the Company, any right to require a proceeding first against the Company or to realize on any collateral, protest, notice and all demands whatsoever with respect to the payment obligations of the Company under the Indenture, (ii) agrees that its obligations hereunder constitute a guarantee of payment and not of collection and are not in any way conditional or contingent upon any attempt to collect from or enforce against the Company or upon any other condition or contingency, (iii) acknowledges that any agreement, instrument or document evidencing the obligations of the Company under the Indenture may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing such obligations without notice to them and (iv) covenants that, except as provided in Article Eight and Section 1203 of the Indenture with respect to the release of Subsidiary Guarantors, its Subsidiary Guarantee will not be discharged except by complete performance of the payment obligations under each series of Securities guaranteed by the Subsidiary Guarantors, including the Securities to which this Subsidiary Guarantee is affixed, and the Indenture.
Each Subsidiary Guarantor further agrees that if at any time all or any part of any payment therefore applied by any person to any payment obligation in respect of any series of Securities guaranteed by the Subsidiary Guarantors including the Securities to which this Subsidiary Guarantee is affixed, is, or must be, rescinded or returned for any reason whatsoever, including, without limitation, the insolvency, bankruptcy or reorganization of the Company or any other Subsidiary Guarantor, such obligation shall for the purposes of the Subsidiary Guarantee, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and the Subsidiary Guarantee shall continue to be effective or be reinstated, as the case may be, as to such payment obligation as though such application had not been made.
Each Subsidiary Guarantor shall, to the extent of any payment made by it pursuant to the Indenture, be subrogated to all rights of the Trustee and the Holders of
Securities guaranteed by the Subsidiary Guarantors, including the Securities to which this Subsidiary Guarantee is affixed, as to all payments and damages payable by the Company with respect to which payments have been made by such Subsidiary Guarantor, but, so long as any payment obligation remains outstanding, such right of subrogation on the part of such Subsidiary Guarantor shall be subject to the payment in full or discharge of all such payment obligations.
Each of the Subsidiary Guarantors shall have the right to seek contribution from any other non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders or the Trustee under the Subsidiary Guarantees made pursuant to the Indenture.
The Subsidiary Guarantors or any particular Subsidiary Guarantor shall be released from this Subsidiary Guarantee upon the terms and subject to certain conditions provided in the Indenture.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any transfer, conveyance, sale or other disposition of the properties and assets of the Company substantially as an entirety in accordance with Section 801 of the Indenture, each Subsidiary Guarantor agrees to reaffirm its duties under this Subsidiary Guarantee, and in the event of any such merger, sale, transfer, consolidation, conveyance or other disposition by any Subsidiary Guarantor, except as provided in the Indenture, each remaining Subsidiary Guarantor or the surviving entity, as the case may be, agrees to reaffirm the duties and covenants of such Subsidiary Guarantor under this Subsidiary Guarantee.
By delivery of a Supplemental Indenture to the Trustee in accordance with the terms of the Indenture, each Person that becomes a Subsidiary Guarantor after the date of the Indenture will be deemed to have executed and delivered this Subsidiary Guarantee for the benefit of the Holder of the Security upon which this Subsidiary Guarantee is endorsed with the same effect as if such Subsidiary Guarantor was named below and has executed and delivered this Subsidiary Guarantee.
All terms used in this Subsidiary Guarantee which are defined in the Indenture referred to in the Security upon which this Subsidiary Guarantee is endorsed shall have the meanings assigned to them in such Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Subsidiary Guarantee is endorsed shall have been executed by the Trustee under the Indenture by manual signature.
Reference is made to the Indenture for further provisions with respect to this Subsidiary Guarantee.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this Subsidiary Guarantee to be duly executed.
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STAPLES THE OFFICE SUPERSTORE, LLC |
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STAPLES THE OFFICE SUPERSTORE EAST, |
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STAPLES CONTRACT & COMMERCIAL, INC. |
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STAPLES THE OFFICE SUPERSTORE, LIMITED |
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