Exhibit
4.2


 


SECOND SUPPLEMENTAL
INDENTURE


 


to


 


INDENTURE (5.875% NOTES
DUE NOVEMBER 15, 2004), DATED AS OF NOVEMBER 15, 1999


 


This SECOND
SUPPLEMENTAL INDENTURE (the “Supplemental Indenture”), is entered into as of
February 1, 2004, by and among Staples, Inc., a Delaware corporation (the
“Company”); Staples the Office Superstore, LLC, a Delaware limited liability
corporation (the “LLC”), and Staples the Office Superstore, Limited
Partnership, a Massachusetts partnership (the “Partnership”) (each, a “Subsidiary
Guarantor” and collectively, the “Subsidiary Guarantors”); and Staples Contract
& Commercial, Inc. (“SCC”), and Staples the Office Superstore East, Inc.
(“STOSE”), (each, an Initial Subsidiary Guarantor and collectively, the
“Initial Subsidiary Guarantors”), and JPMorgan Chase Bank (formerly known as
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, SCC,
STOSE, and Staples the Office Superstore, Inc. (“STOS”) each executed and
delivered to the Trustee the Indenture to provide for its full, unconditional,


 

















 


irrevocable and joint and
several guarantee of the Securities and the obligations of the Company under
the Indenture;


 


WHEREAS, on
November 15, 1999, the Company issued a series of Securities, consisting of
€150,000,000 principal amount of its 5.875% Notes due November 15, 2004
pursuant to the Indenture;


 


WHEREAS, on
October 27, 2000, the Company, and Hackensack Funding, LLC (“Hackensack”) and
Rochester Capital, LLC (“Rochester”) executed and delivered to the Trustee a
First Supplemental Indenture to Indenture (5.875% Notes Due November 15, 2004),
dated as of November 15, 1999, providing for the guarantee by the Hackensack
and Rochester of all the Company’s payment obligations under the Indenture;


 


WHEREAS, each of
the Subsidiary Guarantors is a direct or indirect wholly owned subsidiary of
the Company;


 


WHEREAS, the Board
of Directors of the Company has resolved that it is advisable and in the best
interests of the Company to reorganize the domestic supply chain operations of
the Company (the “Reorganization”) and to take certain other actions in
connection therewith in furtherance of certain stated business purposes;


 


WHEREAS, in
connection with the Reorganization, Rochester has been merged with and into
STOS, and Hackensack has been merged with and into STOS (the “Mergers”);


 


WHEREAS, in
connection with the Reorganization, the LLC has been formed as a limited
liability company under the Delaware Limited Liability Company Act by the
filing on the date hereof of a Certificate of Formation in the Office of the
Secretary of State of the State of Delaware;


 


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WHEREAS, on the
date hereof, STOS was converted into the LLC, and the LLC has succeeded to the
business and assets of STOS (the “Conversion”);


 


WHEREAS, at the
time of the Conversion, the sole Member of the LLC was the Company;


 


WHEREAS, at the
time of the Conversion, the LLC was (i) the owner of 100% of the outstanding
capital stock of STOSE; and, (ii) the sole shareholder of Staples Real Estate
Trust, a trust with transferable shares organized under Chapter 182 of the
Massachusetts General Laws (“SRET”), (iii) the sole shareholder of Staples
Trust Company, a trust with transferable shares organized under Chapter 182 of
the Massachusetts General Laws (“STC”), (iv) the sole limited partner of
Coppell Mill Limited Partnership, a Delaware limited partnership (“CMLP”), and
(v) the holder of certain intercompany payables and receivables (the “Payables
and Receivables”);


 


WHEREAS,
immediately following the Conversion, the LLC distributed all of the shares of
beneficial interest of SRET and STC to the Company, the sole member of the LLC
at the time of such distribution, and transferred for no consideration its
entire right, title and interest in the limited partnership interest in CMLP to
Staples Partners, LLC, a Delaware limited liability company, the sole member of
which is the Company (all of such distributions, the “Interest Distributions”);


 


WHEREAS,
simultaneously with the Interest Distributions, the LLC distributed all of the
Payables and Receivables to the Company, the sole member of the LLC at the time
of such distribution (the “Payables and Receivables Distribution”);


 


WHEREAS,
simultaneously with the Interest Distributions and the Payables and Receivables
Distribution, the LLC distributed all of the capital stock of STOSE to the
Company, the sole member of the LLC at the time of such distribution (the
“STOSE Share Distribution”);


 


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WHEREAS,
immediately following the STOSE Share Distribution: (i) STOSE and the Company
formed the Partnership, (ii) the Company agreed to contribute 99% of its
interest in the LLC to STOSE and 1% of its interest in the LLC directly to the
Partnership, (iii) the Company contributed such 99% interest in the LLC to
STOSE, (iv) STOSE contributed its 99% interest in the LLC to the Partnership,
and (v) at the time STOSE contributed such 99% interest in the LLC to the
Partnership, the Company also contributed its 1% interest in the LLC to the
Partnership (the “Contributions”);


 


WHEREAS, as a
result of the foregoing transactions, the Partnership has become the sole owner
of all of the interests in the LLC;


 


WHEREAS, the
Partnership has agreed to accept certain of the Contributions subject to its
providing a guarantee of the Company’s payment obligations under the Indenture
as set forth herein;


 


WHEREAS, the
Company and the Initial Subsidiary Guarantors each desires to confirm its
obligations under the Indenture and the First Supplemental Indenture following
the Mergers, the Conversion and the Contributions;


 


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 of the Company, each of
the Initial Subsidiary Guarantors and each of the Subsidiary Guarantors


 


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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.


 


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, 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, 


 


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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 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


 


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contained in the Securities or in the Indenture or of any other Initial
Subsidiary Guarantor contained in the Indenture or in the First Supplemental
Indenture or of any Subsidiary Guarantor contained in this Supplemental
Indenture, (ii) any impairment, modification, release or limitation of the
liability of the Company or of any of the 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
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, the First Supplemental 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, the First 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, the First
Supplemental Indenture, or this Supplemental Indenture or (vii) any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor.


 


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(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 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.


 


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(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 the rights of the Holders or the Trustee under the guarantees
made pursuant to the Indenture, the First Supplemental Indenture and this
Supplemental Indenture.


 


4.             CONVEYANCE,
TRANSFER OR LEASE BY SUBSIDIARY GUARANTORS.


 


Nothing contained
in the Indenture, the First Supplemental 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 the
First Supplemental Indenture and 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


 


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(other than the Company or another Wholly Owned Subsidiary of the
Company) and such sale is in accordance with any applicable terms of the
Indenture, then, upon delivery by the Company of an Officers’ Certificate and
Opinion of Counsel stating that all conditions precedent, if any, provided in
the Indenture relating to the release of such Subsidiary Guarantor from its
obligations under the Subsidiary Guarantee and the Indenture have been complied
with, the guarantee of such Subsidiary Guarantor shall be released and
discharged in full.


 


6.             CONFIRMATION
OF OBLIGATIONS.  The Company, each
Initial Subsidiary Guarantor and each Subsidiary Guarantor hereby confirm, and
upon and in connection with the consummation of the Mergers, the Company, each
Initial Subsidiary Guarantor and each Subsidiary Guarantor confirm that each
shall observe and perform and be bound by all of the terms, covenants and
conditions of the Indenture, as supplemented by this Supplemental Indenture.


 


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, 2004.


 


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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.  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 by this
Supplemental Indenture and the First 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 as of the date first above written.


 


	
   

  	
   

  	
  STAPLES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ John J. Mahoney

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John J. Mahoney

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer and

  Chief Administrative Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  STAPLES THE OFFICE SUPERSTORE,

  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ John J. Mahoney

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John J. Mahoney

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer and

  Chief Administrative Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  STAPLES THE OFFICE SUPERSTORE,

  
	
   

  	
   

  	
  Limited Partnership

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By Staples, Inc., its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ John J. Mahoney

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John J. Mahoney

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer and

  Chief Administrative Officer

  
										



 

















 


	
   

  	
   

  	
  STAPLES CONTRACT &

  COMMERCIAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ John J. Mahoney

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  John J. Mahoney

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer and

  Chief Administrative Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  STAPLES THE OFFICE

  SUPERSTORE EAST, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ John J. Mahoney

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John J. Mahoney

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer and

  Chief Administrative Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMORGAN CHASE BANK

  
	
   

  	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ James P. Freeman

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James P. Freeman

  
	
   

  	
   

  	
  Title:

  	
  Vice President