Exhibit 10.1


 


EXECUTION VERSION


 


AMENDMENT
NO. 2
TO


CREDIT
AGREEMENT


 


This AMENDMENT
NO. 2  TO CREDIT AGREEMENT dated as of September 12, 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 §2.6(a).  §2.6(a) of the Credit Agreement is hereby
amended in its entirety to read as follows:


 


“(a) If after the
Effective Date the Borrower or any of its Subsidiaries shall receive Net Cash
Proceeds from the incurrence or issuance of any Indebtedness (other than
Excluded Indebtedness), not later than ten (10) Business Days following the
date of receipt of the Net Cash Proceeds of such Indebtedness the Total
Commitment shall be reduced in an amount equal to such Net Cash Proceeds (and
the Loans shall be prepaid to the extent required by §2.6(e) hereof); provided
that (i) upon such date of receipt of the Net Cash Proceeds the Borrower
shall deposit the amount of such Net Cash Proceeds in a deposit account
acceptable to the Initial Lenders and such amount shall be held in such account
during such ten Business Day period and available for withdrawal by the
Borrower only for the purposes of repaying outstanding commercial paper and/or
loans under the Existing Credit Agreement, (ii) if, on any date during
such ten Business Day period, the Borrower shall use any portion of the amount
in such account for the purposes of repaying the amounts specified in clause (i) above,
the Total Commitments shall be reduced on such date in the amount equal to each
such repayment, (iii) if upon the tenth Business Day following receipt of
such Net Cash Proceeds any portion of the amount in such account remains
unapplied, the Total Commitments shall be reduced on such date in an amount
equal to such unapplied amount and the funds held in such account shall be
remitted by the relevant depositary institution to the Borrower upon its
instructions, (iv)


 

















 


during such ten Business Day period the Borrower
shall use all funds available in such account to repay maturing commercial
paper during such period before it shall make any request for a Loan hereunder
and (v) without limiting the foregoing, upon the termination of the Total
Commitments and repayment of all Loans hereunder, the funds (if any) held in
such account shall be remitted by the relevant depositary institution to the
Borrower upon its instructions.”


 


§2.
Affirmation and Acknowledgement. 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, 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 therefore 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
Agreements, 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


 


2

















 


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.


 


§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]


 


3

















 


	
   

  	
  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:

  	
  /s/Marianne T. Meil

  
	
   

  	
  Name: Marianne T. Meil

  
	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  
	
   

  	
  SUMITOMO MITSUI BANKING

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Yoshihiro Hyakutome

  
	
   

  	
  Name: Yoshihiro Hyakutome

  
	
   

  	
  Title: General Manager

  



 

















 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Michael A. Richards

  
	
   

  	
  Name: Michael A. Richards

  
	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Todd Meller

  
	
   

  	
  Name: Todd Meller

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
  SOVEREIGN BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Judith C.E. Kelley

  
	
   

  	
  Name: Judith C.E. Kelley

  
	
   

  	
  Title: Senior Vice
  President

  



 


 


	
  Acknowledged and Agreed:

  
	
   

  
	
  GUARANTORS

  
	
   

  
	
   

  
	
  STAPLES
  THE OFFICE SUPERSTORE, LLC

  
	
   

  
	
   

  
	
  By:

  	
  /s/Nicholas Hotchkin

  	
   

  
	
  Name: Nicholas Hotchkin

  
	
  Title:  Senior Vice President,
  Finance, Treasurer

  
	
   

  
	
   

  
	
  STAPLES THE OFFICE SUPERSTORE EAST, INC.

  
	
   

  
	
  By:

  	
  /s/Nicholas Hotchkin

  	
   

  
	
  Name: Nicholas Hotchkin

  
	
  Title:  Senior Vice President,
  Finance, Treasurer

  
	
   

  
	
  STAPLES
  CONTRACT & COMMERCIAL, INC.

  
	
   

  
	
  By:

  	
  /s/Nicholas Hotchkin

  	
   

  
	
  Name: Nicholas Hotchkin

  
	
  Title:  Senior Vice President,
  Finance, Treasurer

  
	
   

  
	
  STAPLES
  THE OFFICE SUPERSTORE, LIMITED PARTNERSHIP

  
	
   

  
	
  By:

  	
  /s/Nicholas Hotchkin

  	
   

  
	
  Name: Nicholas Hotchkin

  
	
  Title:  Senior Vice President,
  Finance, Treasurer