Waiver - Of Default Under Credit Agreement - Office Depot Inc.


FORM OF WAIVER

WAIVER (this "Waiver"), dated as of March 30, 2011, to the Credit Agreement dated as of September 26, 2008 (as amended or otherwise modified heretofore, the "Credit Agreement"), among Office Depot, Inc., Office Depot International (UK) Ltd., Office Depot UK Ltd., Office Depot International B.V., Office Depot B.V., OD International (Luxembourg) Finance S. R.L. and Viking Finance (Ireland) Ltd. (collectively, the "Borrowers"), certain subsidiaries of Office Depot, Inc. from time to time parties thereto, the several banks and other institutions from time to time parties thereto (the "Lenders"), JPMorgan Chase Bank N.A., London Branch, as European administrative agent and European collateral agent, JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the "Administrative Agent153) and US collateral agent, Bank of America, N.A., as syndication agent, and Citibank, N.A., Wachovia Bank, National Association and General Electric Capital Corporation, as documentation agents.

W I T N E S S E T H:

WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make, and have made, certain loans and other extensions of credit to the Borrowers;

WHEREAS, the Company intends to restate its financial statements with respect to the second, third and fourth fiscal quarters of 2010 and fiscal year 2010 (collectively, the "2010 Financial Statements") as a result of the Company being denied a carry-back claim relating to certain net operating losses it had asserted under the American Recovery and Re-investment Act of 2009 that, as reported in the 2010 Financial Statements, resulted in a tax benefit to the Company of approximately $80,000,000 (the "Carry-Back Claim");

WHEREAS, the Borrowers have requested that certain Defaults or Events of Default under the Credit Agreement and the other Loan Documents with respect to the 2010 Financial Statements be waived as set forth herein; and

WHEREAS, the Lenders are willing to agree to such waiver on the terms set forth herein;

NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, the undersigned hereby agree as follows:

I. Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.

II. Waiver. The Lenders hereby waive any Default or Event of Default arising from any representation or warranty made or deemed made by or on behalf of the Company in or relating to the 2010 Financial Statements, or in any certificate furnished in connection with the 2010 Financial Statements, having been incorrect, or proven to have been incorrect, when made or deemed made (solely as a result of the Carry-Back Claim or other technical adjustments that do not have a material impact on the 2010 Financial Statements taken as a whole); provided that this waiver shall cease to apply if the restated 2010 Financial Statements are not delivered to the Administrative Agent on or prior to May 15, 2011.

III. Effectiveness of Waiver. This Waiver shall become effective as of the date first written above (the "Waiver Effective Date") upon receipt by the Administrative Agent of duly executed counterparts to this Waiver from the Borrowers, the Collateral Agents and the Required Lenders.


IV. Representations and Warranties. The Borrowers hereby represent and warrant that (a) after giving effect to this Waiver, each of the representations and warranties in the Credit Agreement shall be true and correct in all material respects as if made on and as of the Waiver Effective Date (unless such representations and warranties relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and (b) after giving effect to this Waiver, no Default or Event of Default shall have occurred and be continuing.

V. Governing Law. This Waiver shall be governed by and construed in accordance with the laws of the State of New York, but giving effect to federal laws applicable to national banks.

VI. Counterparts. This Waiver may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Waiver may be delivered by facsimile or other electronic transmission of the relevant signature pages hereof.

[signature pages follow]

2


IN WITNESS WHEREOF, the undersigned have caused this Waiver to be executed and delivered by their duly authorized officers as of the date first above written.

OFFICE DEPOT, INC.

By:

Name:

Title:

OFFICE DEPOT INTERNATIONAL (UK) LTD.

By:

Name:

Title:

OFFICE DEPOT UK LTD.

By:

Name:

Title:

OFFICE DEPOT INTERNATIONAL B.V.

By:

Name:

Title:

OFFICE DEPOT B.V.

By:

Name:

Title:

VIKING FINANCE (IRELAND) LTD.

By:

Name:

Title:

Waiver Signature Page


OD INTERNATIONAL (LUXEMBOURG) FINANCE S. R.L.

By:

Name:

Title:

OD INTERNATIONAL (LUXEMBOURG) FINANCE S. R.L.

By:

Name:

Title:

Waiver Signature Page


JPMORGAN CHASE BANK, N.A., as Administrative Agent, US Collateral Agent and as a Lender

By:

Name:

Title:

JPMORGAN CHASE BANK, N.A., LONDON BRANCH, as European Collateral Agent

By:

Name:

Title:

Waiver Signature Page


[INSERT LENDER NAME], as a Lender

By:

Name:

Waiver Signature Page

537Employment Agreement - Onsale Inc. and John E. Labbett
 
June 15, 1998
 
Mr. John E. Labbett
13400 Riverside Drive
Sherman Oaks, CA  91423
 
Dear John:
 
This is to confirm ONSALE's offer of employment to you as Senior Vice
President/CFO at $200,000 per year, paid bi-monthly, starting part time
(10 hours/week) effective June 17, going to full time on July 16, 1998,
or such earlier date as is mutually agreed.
 
You will participate in ONSALE's standard benefits package as amended
from time to time. This includes a 401K plan and health insurance for
yourself. You may, at your expense, purchase coverage for additional
family members under this plan. You will be entitled to three weeks
vacation per year.
 
You will also receive stock options for 200,000 shares of ONSALE common
stock, subject to board approval, which will vest monthly over a four-
year period after a six-month "cliff".  The stock option price will be
established by the Compensation Committee of the Board of Directors at
the fair market value at the time they approve your grant, which is
expected to be the closing price of the stock on the trading day prior
to your start date of  June 17, 1998.
 
You will be required to sign a standard Employee Inventions and
Assignment Agreement and an Acknowledgement and Receipt of ONSALE's
Employee Handbook.
 
Your employment will at all times be `at will', which means that you or
ONSALE can terminate your employment at any time with or without cause.
There will be no express or implied agreements to the contrary.
 
In the event of a "Change of Control Transaction" (as defined below),
should your employment with the company be involuntarily terminated,
your duties, title or compensation be materially diminished, or the
location of your office be changed by more than 50 miles, you will be
paid severance as follows. Within 2 years of your start date: 12 months
salary; Greater than 2 years but less than 4 years after your start
date: 6 months salary.
 
It is the Company's and your intention that you will relocate your
family to the vicinity of the Company's offices. In the interim, it is
your intention to commute to work on a weekly basis from your current
location. Until you relocate, the Company will arrange for or reimburse
you for actual temporary housing and airfare for a period of up to one
year from your start date, up to a limit of $2000 per month. This
arrangement may be extended for an additional year by mutual agreement.
In the event you relocate, all direct out-of pocket costs associated
with the relocation will be paid by the Company with the Company's
reasonable prior approval, including reimbursement for any net taxable
effects to you.
 
In the event you are involuntarily terminated following your relocation,
except for a "Termination for Cause" (as defined below), you will be
paid severance as follows. Within 1 year of your start date: 6 months
salary; Greater than 1 year but less than 2 years after your start date:
3 months.
 
This offer is contingent upon approval of the compensation committee of
the Board of Directors.
 
Please sign and return a copy of this letter to indicate your acceptance
of these terms. I look forward to working with you to make ONSALE a
success.
 
This offer expires if not signed and returned by 5:00 p.m. on June 16,
1998.
 
Sincerely,
/s/ Jerry Kaplan
-------------------------
Jerry Kaplan                                    ____________________________
CEO                                             Name                  Date
 
 
 
 
Definition of "Change of Control Transaction":
 
A "Change of Control Transaction" shall have occurred if, with or
without consent of the board of directors, (1) any person, enterprise or
group (within the meaning of Section 13(d)(3) or 14 (d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), or
other entity shall become the beneficial owner (within the meaning of
Rule 13d-3 promulgated under the Exchange Act), directly or indirectly
of at least 33.3% of the outstanding stock of the Company entitled to
vote generally for the election of directors, or (2) at any time fewer
than 51% of the members of the Board of Directors of the Company shall
be persons who were either nominated for election  by the Board of
Directors or were elected by the Board of Directors, provided, however,
that for the purposes of determining whether a majority of the Board of
Directors of the company has approved such nomination or election, there
shall be excluded any individual whose initial assumption of office
occurs as a result of either an actual or threatened election contest or
other actual or threatened solicitation of proxies or consents by or on
behalf of a person other than the Board of Directors of the Company, or
(3), there shall be a sale of all or substantially all of the Company's
assets or the Company shall merge or consolidate with another
corporation and the stockholders of the Company immediately prior to
such transaction do not own, immediately after such transaction, stock
of the purchasing or surviving corporation in such transaction (or of
the parent corporation of the purchasing or surviving corporation),
possessing more than 50% of the voting power (for the election of
directors generally) and of outstanding stock of that corporation, which
ownership shall be measured without regard to any stock of the
purchasing, surviving, or parent corporation owned by the stockholders
of the Company before the transaction.
 
Definition of "Termination for Cause":
 
"Termination for Cause" shall mean and be limited to the Company's
termination of executive's employment for (1) willful failure or refusal
without proper cause, to substantially perform his duties as an employee
of the Company, or (2) his conviction for any criminal act, except that
a misdemeanor conviction shall not constitute "Termination for Cause"
unless it shall have involved misappropriate use of funds or property,
fraud, or other similar activity which bears directly upon the
executive's ability to perform faithfully his duties as an employee of
the Company. The executive shall have an opportunity to appeal such
termination to the Board of Directors of the company.