Exhibit 10.1


 


EXECUTION VERSION


 


AMENDMENT NO. 1 TO

CREDIT AGREEMENT


 


This AMENDMENT NO. 1 TO CREDIT AGREEMENT dated as of July 1,
2008 (this “Amendment”), by and among by and among (a) STAPLES, INC. (the “Borrower”),
a Delaware corporation having its principal place of business at 500 Staples
Drive, Framingham, MA 01701, (b) the lending institutions listed under the
caption “Lenders” on signature pages hereto (the “Lenders”), (c) LEHMAN BROTHERS COMMERCIAL
PAPER INC., as administrative agent (in such capacity, the “Administrative  Agent”)
for the Lenders and (d) BANK OF AMERICA,
N.A. and HSBC BANK USA, NATIONAL ASSOCIATION,  as  co-syndication agents for the Lenders (collectively, the “Co-Syndication  Agents”),
amends certain provisions of that certain Credit Agreement, dated as of April 1,
2008 among the Borrower, the Lenders, the Syndication Agent, the Co-Documentation
Agents and the Administrative Agent (as amended and in effect from time to
time, the “Credit Agreement”). 
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Credit Agreement.


 


WHEREAS,  the Borrower, the Administrative Agent and the Lenders
desire to amend certain provisions of the Credit Agreement as provided more
fully herein below;


 


NOW THEREFORE,  in consideration of the mutual agreements contained in the
Credit Agreement and herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:


 


§1.          Amendment
to Section 1.1 (Definitions).  Section 1.1 of the Credit Agreement shall
be amended by amending the following definitions (to the extent already
included in said Section 1.1) and adding the following definitions in the
appropriate alphabetical location (to the extent not already included in said Section 1.1):


 


CXP  Australian  Indebtedness.
 Indebtedness of Subsidiaries of
Corporate Express incorporated or doing business in Australia (“CXP  Australia”)
under one or more credit facilities or similar agreements as in effect as of
the Closing Date and as may be amended or otherwise modified thereafter from
time to time including any refinancing thereof or replacement credit facility
therefor incurred by CXP Australia; provided that the aggregate amount
of such Indebtedness shall not exceed $200,000,000 (or equivalent in other
currencies) outstanding at any time.


 


CXP  Securitization  Indebtedness.  Indebtedness of Corporate Express and its
Subsidiaries in respect of receivables securitization transactions existing as
of the Closing Date and as may be amended or otherwise modified thereafter from
time to time including any refinancing thereof or replacement receivables
securitization transaction by Corporate Express and its Subsidiaries (which may
at any time from and after the Closing Date be guaranteed by the Borrower); provided
that the aggregate amount of such Indebtedness shall not exceed $300,000,000 (or
equivalent in other currencies) outstanding at any time.


 

















 


Excluded  Indebtedness.  Any Indebtedness permitted under §§6.1(a),
(b), (c), (d), (e), (f), (g), (h), (j), (k), (l), (n) (subject to clause (A) of
the immediately following proviso), (o), (q) (subject to clause (B) of
the immediately following proviso) or (r) hereof; provided that (A) the
only Indebtedness incurred under §6.1(n) hereof that shall constitute
Excluded Indebtedness shall be (i) Indebtedness of Subsidiaries under
working capital credit lines or facilities (whether or not committed) in an
aggregate principal amount not exceeding $250,000,000 at any time outstanding
(which Indebtedness may be guaranteed by the Borrower), (ii) Indebtedness
constituting Anticipatory Commercial Paper hereunder or additional commercial
paper issued by the Borrower after the Closing Date, (iii) the Incremental
Term Loan, (iv) Indebtedness in respect of standby letters of credit and (v) from
and after the Closing Date, the CXP Australian Indebtedness and (B) the
only Indebtedness incurred under §6.1(q) hereof that shall constitute
Excluded Indebtedness shall be the CXP Securitization Indebtedness.


 


Incremental  Term  Loan.  Indebtedness of the Borrower (which may be
guaranteed by the Guarantors) under the Credit Agreement dated as of July 1,
2008, as amended, by and among the
Borrower, the lending institutions party thereto and Lehman Commercial Paper
Inc. as administrative agent for such lending institutions; provided
that the aggregate amount of such Indebtedness shall not exceed $400,000,000
outstanding at any time.


 


§2.          Affirmation
and Acknowledgment.  Each of the Borrower and the
Guarantors hereby ratifies and confirms all of its Obligations to the Lenders
and the Administrative Agent, including, without limitation, the Loans, and the
Borrower hereby affirms its absolute and unconditional promise to pay to the
Lenders the Loans, the Obligations, and all other amounts due under the Credit
Agreement as amended hereby and each Guarantor hereby affirms its obligations
in respect of the Guaranty to which it is a party and all other Obligations
payable by it under the Loan Documents.


 


§3.          Representations
and Warranties.  The Borrower hereby represents and
warrants to the Lenders and the Administrative Agent as follows:


 


(a)           The
execution, delivery and performance by the Borrower of this Amendment and the
transactions contemplated hereby (i) are within the corporate authority of
the Borrower, (ii) have been duly authorized by all necessary corporate
proceedings, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to
which the Borrower is subject which would have a material adverse effect either
individually or in the aggregate on the Borrower and its Subsidiaries taken as
a whole or on the ability of the Borrower to fulfill its obligations under the
Credit Agreement and the other Loan Documents to which it is a party, (iv) do
not conflict with or result in any breach or contravention of any judgment,
order, writ, injunction, license or permit applicable to the Borrower and (v) do
not conflict with any provision of the corporate charter or bylaws of, or any
agreement or other instrument binding upon, the Borrower.


 


(b)           The execution
and delivery of this Amendment will result in valid and legally binding
obligations of the Borrower enforceable against it in accordance with the
respective terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, 


 


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insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors’ rights and except to the extent that availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.


 


(c)           The execution,
delivery and performance by the Borrower of this Amendment and the transactions
contemplated hereby do not require the approval or consent of, or filing with,
any governmental agency or authority other than those already obtained.


 


(d)           Each of the
representations and warranties of the Borrower and its Subsidiaries contained
in the Credit Agreement, the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with this Amendment shall be
true as of the date hereof, with the same effect as if made at and as of the
date hereof (except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.


 


§4.          Conditions.  This Amendment shall
become effective upon the satisfaction of the following conditions precedent:


 


(a)           this
Amendment and all related documents, as applicable, shall have been duly
executed and delivered by the Borrower, the Required Lenders, the
Administrative Agent and each other party thereto, as applicable, and shall be
in full force and effect; and


 


(b)           all corporate
action necessary for the valid execution, delivery and performance by the
Borrower of this Amendment and each of the related documents to which it is or
is to become a party, shall have been duly and effectively taken, and evidence
thereof reasonably satisfactory to the Administrative Agent shall have been
provided to the Administrative Agent.


 


§5.          Miscellaneous
Provisions.


 


§5.1.       Except
as otherwise expressly provided by this Amendment, all of the terms, conditions
and provisions of the Credit Agreement and the Loan Documents shall remain the
same.  It is declared and agreed by each
of the parties hereto that the Credit Agreement and the Loan Documents, as
amended hereby, shall continue in full force and effect, and that this
Amendment and the Credit Agreement and the Loan Documents shall be read and
construed as one instrument.  All
references in the Credit Agreement or any related agreement or instrument to
the Credit Agreement shall hereafter refer to the Credit Agreement as amended
hereby.


 


§5.2.       This
Amendment shall be construed according to and governed by the laws of the State
of New York (excluding the laws applicable to conflicts or choice of law).


 


§5.3.       This
Amendment may be executed in any number of counterparts, but all such
counterparts shall together constitute but one instrument.  In making proof of this Amendment, it shall
not be necessary to produce or account for more than one counterpart signed by
each party hereto by and against which enforcement hereof is sought.


 


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§5.4.       The
Borrower hereby agrees to pay to the Administrative Agent, on demand by the
Administrative Agent, all reasonable out-of-pocket costs and expenses incurred
or sustained by the Administrative Agent in connection with the preparation of
this Amendment (including reasonable legal fees).


 


§5.5.       This
Amendment shall constitute a Loan Document under the Credit Agreement, and all
obligations included in this Amendment (including, without limitation, all
obligations for the payment of principal, interest, fees, and other amounts and
expenses) shall constitute Obligations under the Loan Documents.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
BLANK]


 


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  STAPLES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/      Nicholas
  Hotchkin

  
	
   

  	
  Name: Nicholas Hotchkin

  
	
   

  	
  Title: Senior Vice President, Finance and Treasurer

  



 

















 


 


	
   

  	
  LEHMAN COMMERCIAL PAPER INC., as 

  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/      Ahuva
  Schwager

  
	
   

  	
  Name: Ahuva Schwager

  
	
   

  	
  Title: Authorized Signatory

  



 

















 


	
   

  	
  LENDERS

  
	
   

  	
   

  
	
   

  	
  LEHMAN COMMERCIAL PAPER INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/      Ahuva
  Schwager

  
	
   

  	
  Name: Ahuva Schwager

  
	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Lender and Co-Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/      Thomas
  J. Kane

  
	
   

  	
  Name: Thomas J. Kane

  
	
   

  	
  Title: SVP

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HSBC BANK USA, NATIONAL 

  ASSOCIATION,

  
	
   

  	
  as Lender and Co-Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/      Robert
  J. Devir

  
	
   

  	
  Name: Robert J Devir

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KEY BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
  Acknowledged and Agreed:

  	
   

  
	
   

  	
   

  
	
  GUARANTORS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  STAPLES THE OFFICE SUPERSTORE, LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
               /s/          Nicholas
  Hotchkin

  	
   

  
	
  Name: Nicholas Hotchkin

  	
   

  
	
  Title: Senior Vice President, Finance and
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  STAPLES THE OFFICE SUPERSTORE EAST, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
               /s/          Nicholas
  Hotchkin

  	
   

  
	
  Name: Nicholas Hotchkin

  	
   

  
	
  Title: Senior Vice President, Finance and
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  STAPLES
  CONTRACT & COMMERCIAL, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
               /s/          Nicholas
  Hotchkin

  	
   

  
	
  Name: Nicholas Hotchkin

  	
   

  
	
  Title: Senior Vice President, Finance and
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  STAPLES THE OFFICE SUPERSTORE, LIMITED
  PARTNERSHIP

  	
   

  
	
  By its General Partner: Staples, Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
               /s/          Nicholas
  Hotchkin

  	
   

  
	
  Name: Nicholas Hotchkin

  	
   

  
	
  Title: Senior Vice President, Finance and
  Treasurer