EXHIBIT 4.5
FIRST SUPPLEMENTAL INDENTURE
to
INDENTURE (5.875% NOTES DUE NOVEMBER 15, 2004),
DATED AS OF NOVEMBER 15, 1999
This FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), is
entered into as of October 27, 2000, by and among Staples, Inc., a Delaware
corporation (the "Company"); Rochester Capital, LLC, a Delaware limited
liability company, and Hackensack Funding, LLC, a Delaware limited liability
company (each, a "Subsidiary Guarantor" and collectively, the "Subsidiary
Guarantors"); Staples Contract & Commercial, Inc., a Delaware corporation,
Staples the Office Superstore, Inc., a Delaware corporation, and Staples the
Office Superstore East, Inc., a Delaware corporation (each an "Initial
Subsidiary Guarantor," and collectively, the "Initial Subsidiary Guarantors")
and The Chase Manhattan Bank, a banking corporation duly organized and existing
under the laws of the State of New York, as trustee under the Indenture referred
to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture, dated as of November 15, 1999 (the "Indenture"), providing for the
issuance from time to time of its unsecured debentures, notes or other evidences
of indebtedness (the "Securities");
WHEREAS, each of the Initial Subsidiary Guarantors executed and delivered
to the Trustee the Indenture to provide for its full, unconditional, irrevocable
and joint and several guarantee of the Securities;
WHEREAS, the Company issued a series of Securities, consisting of EURO
150,000,000 principal amount of its 5.875% Notes due November 15, 2004, pursuant
to the Indenture;
WHEREAS, each of the Subsidiary Guarantors is a direct or indirect wholly
owned subsidiary of the Company;
WHEREAS, one or more of the Initial Subsidiary Guarantors desire to make,
directly or indirectly, certain transfers or capital contributions to one or
more of the Subsidiary Guarantors, including the transfer to such Subsidiary
Guarantors of assets, cash or equity securities in other Subsidiaries (or any
combination of the foregoing) (collectively, the "Contributions");
WHEREAS, each Subsidiary Guarantor has agreed to accept such Contributions
subject to its providing a guarantee of the Company's payment obligations under
the Indenture as set forth herein;
WHEREAS, Section 901 of the Indenture contemplates the execution of
supplemental indentures without the consent of any Holders of Securities for the
purposes stated therein;
WHEREAS, the Company desires and has requested the Trustee, in a Company
Request, to join in the execution and delivery of this Supplemental Indenture
for the purpose of supplementing the Indenture in certain respects as set forth
in this Supplemental Indenture;
WHEREAS, such Company Request was accompanied by a Board Resolution
authorizing the execution of this Supplemental Indenture and by an Opinion of
Counsel as required by the Indenture;
WHEREAS, pursuant to Section 901 of the Indenture, upon receipt of the
documents set forth in the preceding recitals, the Trustee shall join in the
execution of a supplemental indenture without the consent of the Holders for the
purposes set forth in the preceding recitals; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
supplement to the Indenture have been done.
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NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Subsidiary Guarantors, the Initial Subsidiary Guarantors and
the Trustee mutually covenant and agree for the equal and proportionate benefit
of the respective Holders from time to time of Securities as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein but not otherwise
defined shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Subsidiary Guarantor hereby absolutely
and unconditionally guarantees, jointly and severally with each other Subsidiary
Guarantor and each other Initial Subsidiary Guarantor, to each Holder of a
Security authenticated and delivered by the Trustee 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, premium, if any, and interest on the Securities
will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the
overdue principal of, premium, if any, and interest on the
Securities, to the extent lawful, and all other payment
obligations of the Company to the Holders or the Trustee
thereunder or under the Indenture will be promptly paid in full,
all in accordance with the terms thereof and 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
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the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this guarantee would constitute
or result in a violation of any applicable fraudulent conveyance of similar law
of any relevant jurisdiction, the liability of each Subsidiary Guarantor under
this Supplemental Indenture and its guarantee shall be reduced to the maximum
amount permissible under such fraudulent conveyance or similar law.
3. AGREEMENTS AND OBLIGATIONS OF SUBSIDIARY GUARANTORS.
(a) If the Company shall default in the due and punctual payment of
any obligation under the Indenture including under the Securities, 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.
(b) 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 of the Company
contained in the Securities or in the Indenture or of any other Initial
Subsidiary Guarantor contained in the Indenture or of any Subsidiary Guarantor
contained in this Supplemental Indenture, (ii) any impairment, modification,
release or limitation of the liability of the Company of any Initial Subsidiary
Guarantors 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
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similar laws or from the decision of any court, (iii) the assertion or exercise
by the Company, any of the Initial Subsidiary Guarantors, any other Subsidiary
Guarantor, or the Trustee of any rights or remedies under the Securities, the
Indenture or this Supplemental 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, any of the Initial Subsidiary Guarantors, or any other
Subsidiary Guarantor or any of their assets, or the disaffirmance of this
Supplemental Indenture or the Securities or the Indenture in any such
proceeding, (v) the release or discharge of the Company, any of the Initial
Subsidiary Guarantors, 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 the
Securities, the Indenture or this Supplement Indenture or (vii) any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor.
(c) 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
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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 its guarantee will not be discharged except by
complete performance of the payment obligations under the Securities and the
Indenture.
(d) Each Subsidiary Guarantor further agrees that if at any time all
or any part of any payment theretofore applied by any person to any payment
obligation is, or must be, rescinded or returned for any reason whatsoever,
including, without limitation, the insolvency, bankruptcy or reorganization of
the Company, any of the Initial Subsidiary Guarantors, or any other Subsidiary
Guarantor, such obligations shall for the purposes of the 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 guarantee made
pursuant to this Supplement Indenture 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.
(e) Each Subsidiary Guarantor shall, to the extent of any payment
made by it pursuant to this Supplemental Indenture, be subrogated to all rights
of the Trustee and the Holders of the Securities 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.
(f) Each of the Subsidiary Guarantors and each of the Initial
Subsidiary Guarantors shall have the right to seek contribution from any other
non-paying Subsidiary Guarantor or Initial Subsidiary Guarantor so long as the
exercise of such right does not impair
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the rights of the Holders or the Trustee under the guarantees made pursuant to
the Indenture and this Supplemental Indenture.
4. CONVEYANCE, TRANSFER OR LEASE BY SUBSIDIARY GUARANTORS. Nothing
contained in the Indenture, this Supplemental Indenture or in the Securities
shall prevent any conveyance, transfer or lease of the properties and assets of
any Subsidiary Guarantor or Initial Subsidiary Guarantor (whether or not as an
entirety) to the Company or any other Subsidiary Guarantor or Initial Subsidiary
Guarantor, or any other Person that guarantees the Company's payment
obligations, which guarantee is evidenced by the execution of a supplemental
indenture substantially in the form of this Supplemental Indenture and has the
same effect as if such Person were a Subsidiary Guarantor hereunder.
5. RELEASE FOLLOWING SALE OF VOTING STOCK. If and when all of the issued
and outstanding shares of Voting Stock of a Subsidiary Guarantor are sold,
directly or indirectly, by the Company or another Wholly Owned Subsidiary of the
Company to any Person (other than the Company or another Wholly Owned Subsidiary
of the Company), the guarantee of such Subsidiary Guarantor shall be released
and discharged in full.
6. MISCELLANEOUS.
(a) GOVERNING LAW. This Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
(b) COUNTERPARTS. This Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
(c) EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction hereof.
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(d) EFFECTIVE DATE. This Supplemental Indenture shall be effective as
of October 27, 2000.
(e) RECITALS. The recitals contained herein shall be the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The trustee shall not be responsible for, and assumes no liability with respect
to, the validity or sufficiency of this Supplemental Indenture.
(f) INTERPRETATION. Except as expressly supplemented as provided in
this Supplemental Indenture, the Indenture shall remain in full force and
effect. All the terms and conditions of this Supplemental Indenture shall be
deemed to be part of the terms and conditions of the Indenture for any and all
purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
[CORPORATE SEAL] STAPLES, INC.
Attest: /s/ Xxxx X. XxxXxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------- --------------------------------
Name: Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President,
Finance & Treasurer
[CORPORATE SEAL] STAPLES CONTRACT & COMMERCIAL, INC.
Attest: /s/ Xxxx X. XxxXxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------- --------------------------------
Name: Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President,
Finance & Treasurer
[CORPORATE SEAL] ROCHESTER CAPITAL, LLC
Attest: /s/ Xxxx X. XxxXxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------- --------------------------------
Name: Name: Xxxxxxx Xxxxxxx
Title: President
[CORPORATE SEAL] HACKENSACK FUNDING, LLC
Attest: /s/ Xxxx X. XxxXxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------- --------------------------------
Name: Name: Xxxxxxx Xxxxxxx
Title: Treasurer
[CORPORATE SEAL] STAPLES THE OFFICE SUPERSTORE, INC.
Attest: /s/ Xxxx X. XxxXxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------- --------------------------------
Name: Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President,
Finance & Treasurer
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[CORPORATE SEAL] STAPLES THE OFFICE SUPERSTORE
EAST, INC.
Attest: /s/ Xxxx X. XxxXxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------- --------------------------------
Name: Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President,
Finance & Treasurer
[CORPORATE SEAL] THE CHASE MANHATTAN BANK, as Trustee
Attest: By: /s/ Xxx X. Xxxxxxxx
------------------------- --------------------------------
Name: Name: Xxx X. Xxxxxxxx
Title: Vice-President
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COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF MIDDLESEX )
On the 27 day of October, 2000, before me personally came Xxxxxxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President, Finance & Treasurer of Staples, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
/s/ XXXXX X. PARCINTO
------------------------------------
Notary Public
My Commission Expires September 21, 2001
11
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF MIDDLESEX )
On the 27 day of October, 2000, before me personally came Xxxxxxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President, Finance & Treasurer of Staples Contract & Commercial,
Inc., one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
/s/ XXXXX X. PARCINTO
------------------------------------
Notary Public
My Commission Expires September 21, 2001
12
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF MIDDLESEX )
On the 27 day of October, 2000, before me personally came Xxxxxxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
President of Rochester Capital LLC, one of the limited liability companies
described in and which executed the foregoing instrument; that he knows the seal
of said company; that the seal affixed to said instrument is such company seal;
that it was so affixed by authority of the Managers of said company; and that he
signed his name thereto by like authority.
/s/ XXXXX X. PARCINTO
------------------------------------
Notary Public
My Commission Expires September 21, 2001
13
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF MIDDLESEX )
On the 27 day of October, 2000, before me personally came Xxxxxxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Treasurer of Hackensack Funding LLC, one of the limited liability companies
described in and which executed the foregoing instrument; that he knows the seal
of said company; that the seal affixed to said instrument is such company seal;
that it was so affixed by authority of the Managers of said company; and that he
signed his name thereto by like authority.
/s/ XXXXX X. PARCINTO
------------------------------------
Notary Public
My Commission Expires September 21, 2001
14
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF MIDDLESEX )
On the 27 day of October, 2000, before me personally came Xxxxxxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President, Finance & Treasurer of Staples the Office Superstore,
Inc., one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
/s/ XXXXX X. PARCINTO
------------------------------------
Notary Public
My Commission Expires September 21, 2001
15
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF MIDDLESEX )
On the 27 day of October, 2000, before me personally came Xxxxxxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President, Finance & Treasurer of Staples the Office Superstore
East, Inc., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
/s/ XXXXX X. PARCINTO
------------------------------------
Notary Public
My Commission Expires September 21, 2001
16
COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF SUFFOLK )
On the 26th day of October, 2000, before me personally came Xxx X.
Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is a Trust Officer of The Chase Manhattan Bank, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ XXXXX XXXXXX
---------------------------------
Notary Public
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