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Exhibit 10.1
FIRST SUPPLEMENTAL INDENTURE
to
INDENTURE, DATED AS OF OCTOBER 5, 1995
This FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), is
entered into as of January 15, 1998, by and among Staples, Inc., a Delaware
corporation (the "Company"), 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, a
"Subsidiary Guarantor" and collectively, the "Subsidiary Guarantors"), and
Marine Midland Bank, a New York banking corporation and trust company, as
trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H:
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WHEREAS, the Company has issued $300,000,000 principal amount of its 4 1/2%
Convertible Subordinated Debentures due October 1, 2000 (the "Securities")
pursuant to an indenture, dated as of October 5, 1995 (the "Indenture"), between
the Company and the Trustee;
WHEREAS, each of the Subsidiary Guarantors is a direct or indirect wholly
owned subsidiary of the Company;
WHEREAS, the Company desires to make certain additional capital
contributions to the Subsidiary Guarantors, including the transfer to such
Subsidiary
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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 8.1(6) 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 8.1 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 Company, the 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, 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 and the obligations of the Company under the Indenture and the
Securities, that:
(i) the principal of, premium, if any, and interest (including
Additional Amounts and Bearer Additional Amounts, if any, payable
pursuant to Section 10.4 of the Indenture) on the Securities and
coupons, as applicable, 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
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Trustee thereunder will be promptly paid in full, all in
accordance with the terms thereof; 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 (the matters
being guaranteed pursuant to this Supplemental Indenture are
referred to herein as the "Obligations").
Notwithstanding the foregoing, in the event that this 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
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.
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(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 Subsidiary
Guarantor contained in this Supplemental Indenture, (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 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 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 or any other Subsidiary Guarantor from the performance or
observance of any agreement, covenant, term
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or condition contained in any of such instruments by operation of law, (vi) the
unenforceability of the Securities, the Indenture or this Supplemental
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 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 its Obligations
hereunder.
(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 Obligation
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
guarantee, to the extent that such payment is or must
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be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the guarantee made pursuant to this
Supplemental Indenture shall continue to be effective or be reinstated, as the
case may be, as to such 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 Guarantors, but, so long as any 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 Obligations.
(f) 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 guarantees made pursuant to this Supplemental Indenture.
4. CONVEYANCE, TRANSFER OR LEASE BY SUBSIDIARY GUARANTORS.
(a) 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 (whether or not as an entirety) to the
Company or any other Subsidiary Guarantor, or any other wholly owned Subsidiary
of the Company that guarantees the Obligations, which guarantee is evidenced by
the execution of a supplemental indenture
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substantially in the form of this Supplemental Indenture and has the same effect
as if such wholly owned Subsidiary were a Subsidiary Guarantor hereunder.
(b) Except as set forth below, 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
(whether or not as an entirety) to any Person other than the Company or any
other Subsidiary Guarantor. If in one transaction or a series of related
transactions the Company or one or more Subsidiary Guarantors conveys, transfers
or leases properties or assets, including the stock of one or more Subsidiary
Guarantors, which if owned by the Company, would constitute all or substantially
all of the properties and assets of the Company and its Subsidiaries (determined
on a consolidated basis), such conveyance, transfer or lease shall be deemed to
be a conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety for purposes of Section 7.1 of the Indenture.
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 that has guaranteed the Obligations in a manner consistent with
the guarantee provided by this Supplemental Indenture), the guarantee of such
Subsidiary Guarantor shall be released and discharged in full; provided that if
any such sale when taken together with any other related sale, conveyance,
transfer or lease of assets of the Company that shall together constitute a
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conveyance, transfer or lease of all or substantially all of the properties and
assets of the Company and its Subsidiaries (determined on a consolidated basis),
such sale of the voting stock of such Subsidiary Guarantor shall be deemed to be
a conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety for purposes of Section 7.1 of the Indenture.
6. SUBORDINATION. The Obligations of each Subsidiary Guarantor hereunder
shall be subordinated, on the same basis and to the same extent as provided in
ARTICLE THIRTEEN of the Indenture, to any guarantee granted by such Subsidiary
Guarantor in respect of Senior Indebtedness of the Company and to any
indebtedness of such Subsidiary Guarantor which is of the type contemplated by
the definition of Senior Indebtedness.
7. 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.
(d) EFFECTIVE DATE. This Supplemental Indenture shall be effective as
of February 1, 1998.
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(e) RECITALS. The recitals contained herein shall be the statements
of the Company and the Trustee assumes no responsibility for their correctness.
(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.
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: By:
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Name: Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
[CORPORATE SEAL] STAPLES CONTRACT &
COMMERCIAL, INC.
Attest: By:
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Name: Name: Xxxxxxx Xxxxxx
Title: Treasurer
[CORPORATE SEAL] STAPLES THE OFFICE
SUPERSTORE, INC.
Attest: By:
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Name: Name: Xxxxxxx Xxxxxx
Title: Treasurer
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[CORPORATE SEAL] STAPLES THE OFFICE
SUPERSTORE EAST, INC.
Attest: By:
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Name: Name: Xxxxxxx Xxxxxx
Title: Treasurer
[CORPORATE SEAL] MARINE MIDLAND BANK, as Trustee
Attest: By:
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Name: Name:
Title:
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COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF WORCESTER )
On the ____ day of __________, 1998, before me personally came
Xxxx X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is Chief Financial Officer 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.
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Notary Public
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COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF WORCESTER )
On the ______ day of __________, 1998, before me personally came
Xxxxxxx Xxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is 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.
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Notary Public
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COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF WORCESTER )
On the _____ day of ______________, 1998, before me personally
came Xxxxxxx Xxxxxx, to me known, who, being by me duly sworn, did depose and
say that he is 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.
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Notary Public
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COMMONWEALTH OF MASSACHUSETTS )
: ss.:
COUNTY OF WORCESTER )
On the ____ day of ___________, 1998, before me personally came
Xxxxxxx Xxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is 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.
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Notary Public
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XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On the _____ day of __________, 1998, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is ______________________ of Marine Midland 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.
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Notary Public
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