Exhibit 4.3


 


THIRD SUPPLEMENTAL
INDENTURE


 


to


 


INDENTURE (SENIOR DEBT
SECURITIES), DATED AS OF AUGUST 12, 1997


 


This THIRD 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 August 12, 1997 (the
“Indenture”), providing for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the “Securities”);


 


WHEREAS, on August 5, 1997, the Company issued a
series of Securities, consisting of $200,000,000 principal amount of its 7.125%
Senior Notes due August 15, 2007 pursuant to the Indenture;


 

















 


WHEREAS, on January 15, 1998, the Company, SCC, STOSE
and Staples the Office Superstore, Inc. (“STOS”) executed and delivered to the
Trustee a First Supplemental Indenture to Indenture (Senior Debt Securities),
dated as of August 12, 1997 (the “First Supplemental Indenture”) providing for
the guarantee by the SCC, STOSE and STOS of all the Company’s payment
obligations under the Indenture;


 


WHEREAS, on October 27, 2000, the Company, Hackensack
Funding, LLC (“Hackensack”) and Rochester Capital, LLC (“Rochester”) executed
and delivered to the Trustee a Second Supplemental Indenture to Indenture
(Senior Debt Securities), dated as of August 12, 1997 (the “Second Supplemental
Indenture”) providing for the guarantee by the Hackensack and Rochester of all
the Company’s payment obligations under the Indenture;


 


WHEREAS, the Company may from time to time in the
future issue additional series of Securities;


 


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


 


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date hereof of a
Certificate of Formation in the Office of the Secretary of State of the State
of Delaware;


 


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”);


 


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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”);


 


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, the
First Supplemental Indenture and the Second 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;


 


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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 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 Guarantors, 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:


 


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(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 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,


 


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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 or of the Initial Subsidiary
Guarantors contained in the First Supplemental Indenture or Second 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, the Second 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, the Second
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


 


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such instruments by operation of law, (vi) the
unenforceability of the Securities, the Indenture, the First Supplemental
Indenture, the Second Supplemental 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 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


 


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


 


4.             CONVEYANCE,
TRANSFER OR LEASE BY SUBSIDIARY GUARANTORS.


 


(a)           Nothing
contained in the Indenture, the First Supplemental Indenture, the Second
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 Initial Subsidiary Guarantor or
Subsidiary Guarantor, or any other Wholly Owned Subsidiary of the Company that
guarantees or has guaranteed 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, the Second Supplemental Indenture and
this Supplemental


 


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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, the First Supplemental
Indenture, the Second 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 (whether or not as an
entirety) to any Person other than the Company or any other Subsidiary
Guarantor or any of the Initial Subsidiary Guarantors.  If one or more Subsidiary Guarantors, in one
transaction or a series of related transactions, conveys, transfers or leases
properties and assets 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
(x) Section 801 of the Indenture (if such conveyance, transfer or
lease is to any Person other than one or more Wholly Owned Subsidiaries of the
Company) or (y) Section 803 of the Indenture (if such conveyance,
transfer or lease is solely to one or more Wholly Owned Subsidiaries of the
Company).


 


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) 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


 


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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.


 


(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.


 


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(f)            Interpretation.  Except as expressly supplemented by this
Supplemental Indenture, the First Supplemental Indenture and the Second
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