Exhibit
4.1


 


FIRST SUPPLEMENTAL
INDENTURE


 


to


 


INDENTURE, DATED AS OF
SEPTEMBER 30, 2002


 


This FIRST
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 HSBC Bank USA, a banking corporation and trust
company 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 September 30, 2002 (the “Indenture”), providing for the issuance
from time to time of its unsecured debentures, notes or other evidences of
indebtedness (the “Securities”);


 


WHEREAS, each of
the Initial Subsidiary Guarantors, Rochester Capital, LLC (“Rochester”),
Hackensack Funding, LLC (“Hackensack”), and Staples the Office Superstore, Inc.
(“STOS”) executed and delivered to the Trustee the Indenture to provide for its
full,


 

















 


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


 


WHEREAS, on
September 30, 2002, the Company issued a series of Securities, consisting of
$375,000,000 principal amount of its 7.375% Senior Notes due October 1, 2012 pursuant
to 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;


 


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


 


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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”);


 


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


 


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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 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
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.


 


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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, 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, 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


 


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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 contained in
the Securities or in the Indenture or of any other Initial Subsidiary Guarantor
contained in the 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,


 


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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 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 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 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


 


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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.


 


(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


 


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


 


4.             CONVEYANCE,
TRANSFER OR LEASE BY SUBSIDIARY GUARANTORS.


 


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 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 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 (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.


 


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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.


 


(f)            Interpretation.  Except as expressly supplemented by this
Supplemental Indenture, the Indenture shall remain in full force and
effect.  All the terms and conditions of
this


 


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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 and in the case of the Company, the Subsidiary Guarantors and the
Initial Subsidiary Guarantors attested, all as of the date first above written.


 


	
  [CORPORATE SEAL]

  	
  STAPLES, INC.

  
	
   

  
	
   

  
	
  Attest:

  	
    /s/ Mark A. Weiss

  	
   

  	
  By:

  	
     /s/ John J. Mahoney

  	
   

  
	
  Name:

  	
  Mark A. Weiss

  	
  Name:

  	
  John J. Mahoney

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer and

  
	
   

  	
   

  	
   

  	
  Chief Administrative Officer

  
	
   

  
	
   

  
	
   

  	
   

  	
  STAPLES THE OFFICE SUPERSTORE,

  LLC

  
	
   

  	
   

  	
  as Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
    /s/ Mark A. Weiss

  	
   

  	
  By:

  	
    /s/ John J. Mahoney

  	
   

  
	
  Name:

  	
  Mark A. Weiss

  	
  Name: 

  	
  John J. Mahoney

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer and

  
	
   

  	
   

  	
   

  	
  Chief Administrative Officer

  
	
   

  
	
   

  	
   

  	
  STAPLES THE OFFICE SUPERSTORE,

  
	
   

  	
   

  	
  Limited Partnership

  
	
   

  	
   

  	
  as Subsidiary Guarantor

  
	
   

  	
   

  
	
  Attest:

  	
    /s/ Mark A. Weiss

  	
   

  	
  By Staples, Inc., its General Partner

  
	
  Name:

  	
  Mark A. Weiss

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ John J. Mahoney

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John J. Mahoney

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer and

  Chief Administrative Officer

  
													



 

















 


	
  [CORPORATE SEAL]

  	
  STAPLES CONTRACT &

  
	
   

  	
  COMMERCIAL, INC.

  
	
   

  	
  as Initial Subsidiary Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
     /s/ Mark A. Weiss

  	
   

  	
  By:

  	
     /s/ John J. Mahoney

  	
   

  
	
  Name:

  	
  Mark A. Weiss

  	
   

  	
  Name:

  	
  John J. Mahoney

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
   

  	
  Chief Financial Officer and

  
	
   

  	
   

  	
   

  	
   

  	
  Chief Administrative Officer

  
	
   

  
	
  [CORPORATE SEAL]

  	
  STAPLES THE OFFICE

  
	
   

  	
   

  	
  SUPERSTORE EAST, INC.

  
	
   

  	
   

  	
  as Initial Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
    /s/ Mark A. Weiss

  	
   

  	
  By:

  	
    /s/ John J. Mahoney

  	
   

  
	
  Name:

  	
  Mark A. Weiss

  	
  Name:

  	
  John J. Mahoney

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
   

  	
  Chief Financial Officer and

  
	
   

  	
   

  	
   

  	
   

  	
  Chief Administrative Officer

  
	
   

  
	
   

  
	
   

  	
  HSBC BANK USA,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
    /s/ Frank J. Godino

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Frank J. Godino

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
																



 

















 


	
  COMMONWEALTH OF MASSACHUSETTS

  	
  )

  
	
   

  	
  : ss.:

  
	
  COUNTY OF MIDDLESEX

  	
  )

  



 


On the 1st
day of February, 2004, before me personally came John J. Mahoney, to me known,
who, being by me duly sworn, did depose and say that he is Executive Vice
President, Chief Financial Officer, Chief Administrative Officer of Staples,
Inc., Staples the Office Superstore East, Inc., and Staples Contract and
Commercial, Inc., the corporations described in and which executed the
foregoing instrument and that the foregoing instrument was executed by
authority of the Board of Directors of said corporations.


 


	
   

  	
    /s/ Lisa L. Foley

  	
   

  
	
   

  	
  Notary Public

  



 

















 


	
  COMMONWEALTH OF MASSACHUSETTS

  	
  )

  
	
   

  	
  : ss.:

  
	
  COUNTY OF MIDDLESEX

  	
  )

  



 


On the 1st
day of February, 2004, before me personally came John J. Mahoney, to me known,
who, being by me duly sworn, did depose and say that he is Executive Vice
President, Chief Financial Officer, Chief Administrative Officer of Staples the
Office Superstore, LLC, a limited liability company described in and which
executed the foregoing instrument; that he signed his name thereto by authority
of the Managers of said limited liability companies.


 


	
   

  	
    /s/ Lisa L. Foley

  	
   

  
	
   

  	
  Notary Public

  



 

















 


	
  COMMONWEALTH OF MASSACHUSETTS

  	
  )

  
	
   

  	
  : ss.:

  
	
  COUNTY OF MIDDLESEX

  	
  )

  



 


On the 1st
day of February, 2004, before me personally came John J. Mahoney, to me known,
who, being by me duly sworn, did depose and say that he is Executive Vice
President, Chief Financial Officer, Chief Administrative Officer of Staples the
Office Superstore, Limited Partnership, a limited partnership described in and
which executed the foregoing instrument and that he signed his name thereto by
authority of the Managing Partner.


 


	
   

  	
    /s/ Lisa L. Foley

  	
   

  
	
   

  	
  Notary Public